Date: 1 September 2024
Mikropor GmbH
General Terms and Conditions
§ 1 Scope, Form
1. These General Terms and Conditions (“T&Cs”) shall apply to all business relationships between Mikropor GmbH, registered with the commercial register of the local court of Aachen under HRB 27836 (“us”, “we” or “Mikropor”) and its customers (‘’Buyer‘’ or “you”, Buyer and Mikropor each a Party and together the “Parties”). The T&Cs shall only apply if the Buyer is a trader (Unternehmer) within the meaning of Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
2. The T&Cs apply in particular to contracts for the sale and/or delivery of our products (the ”Products”), irrespective of whether we manufacture the Products ourselves or purchase them from our suppliers. Unless otherwise agreed, the T&Cs in the version valid at the time of the Buyer’s order shall also apply as a framework agreement for fu-ture contracts, without us having to refer to them again in each individual case.
3. Our T&Cs shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer or any third parties shall only become part of the contract if and insofar as we have expressly agreed to their applicability. This consent require-ment shall apply in any case, for example even if the Buyer refers to its own general terms and conditions in the course of the order and we do not expressly object to them.
4. References to the application of statutory provisions are for clarification purposes only. The statutory provisions shall therefore apply even without such clarification, unless they are directly amended or expressly excluded in these T&Cs.
§ 2 Conclusion of Contract
1. Our offers are non-binding.
2. The order of the Products by the Buyer shall be deemed a binding contractual offer. We shall be entitled to accept this contractual offer within two (2) weeks of its receipt by us.
3. By ordering the Products, the Buyer bindingly declares that it wishes to purchase the ordered Products under the conditions of these T&Cs. Orders are only accepted if they are confirmed by us in writing. If ordered Products are not available, we will not accept the order and inform the Buyer immediately; any payments already made shall be re-imbursed by us without delay.
4. We reserve the right to assign subcontractors to fulfil our contractual obligations.
§ 3 Delivery Period and Delay in Delivery
1. If the delivery period is not individually agreed, the delivery period shall be ten (10) weeks from conclusion of the contract.
2. We shall only be in default with our delivery if a reasonable deadline set by the Buyer in writing, which must be at least two (2) weeks, has expired without result.
3. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the Products), we shall inform the Buyer of that fact im-mediately and at the same time inform the Buyer of the expected new delivery dead-line. If the Products are still not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reim-burse any consideration already provided by the Buyer. Non-availability of the Products shall be deemed to exist, for example, in the event of late delivery by our suppliers, if we have concluded a congruent transaction (kongruentes Deckungsgeschäft), or in the event of other disruptions in the supply chain, for example due to force majeure.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
1. Delivery shall be ex warehouse (ab Lager), which is also the place of performance for the delivery and any subsequent fulfilment (Nacherfüllung). At the request and expense of the Buyer, the Products shall be shipped to another destination (Versendungskauf) (“Sales Shipment”). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch method, packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the Products shall pass to the Buyer at the latest upon handover. In the case of Sales Shipment, however, the risk of accidental loss and accidental deterioration of the Products as well as the risk of delay shall already pass to the Buyer upon delivery of the Products to the forwarder (Spediteur), the carrier (Frachtführer) or the person or organization otherwise designat-ed to carry out the shipment. If the Parties have agreed that the Products must be ac-cepted, for example due to customized production or special adaptations, the risk shall be transferred upon acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
3. If the Buyer is in default of acceptance (Annahmeverzug), fails to co-operate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be en-titled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we will charge a compensation amounting to 0.5 % of the purchase price per calendar week, however, not exceeding 5 % of the purchase price in total, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the Products are ready for dispatch. In case the Buyer finally rejects delivery, we are entitled to charge 10 % of the purchase price.
Proof of higher damages and our statutory claims (in particular reimbursement of addi-tional expenses, cancellation) shall remain unaffected; however, the fixed compensa-tion shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damages at all or only significantly lower damages than the above fixed compensation.
§ 5 Prices and Terms of Payment, Offsetting, Right of Retention
1. Unless otherwise agreed in individual cases, our current prices at the time of conclu-sion of the contract shall apply, ex warehouse, plus statutory VAT (if applicable).
2. In the case of Sales Shipment, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
3. The purchase price is due and payable within thirty (30) days of invoicing and delivery or, if the Products must be accepted, acceptance of the Products. However, we are au-thorized at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
4. After expiry of the aforementioned payment period, the Buyer shall be in default of payment. During the period of default, the Buyer shall pay interest at a rate of 9 per-centage points above the base interest rate. We reserve the right to assert further claims for damages caused by default.
5. Offsetting against our claims is excluded unless the counterclaim to be offset has been legally established or is undisputed. The same shall apply to the assertion of a right of retention by the customer. The Buyer may only exercise a right of retention if its coun-terclaim is based on the same contractual relationship.
§ 6 Retention of Title
1. We reserve title to the Products sold until full payment of all our current and future claims arising from the purchase contract and from the ongoing business relationship with the Buyer.
2. The Products subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the Products belonging to us (e.g. by way of attachment) or make similar interventions, so that we can file a lawsuit in accordance with Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such lawsuit, the Buyer shall be liable for the loss incurred.
3. In the event of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Products on the basis of the retention of title. The demand for return does not at the same time include a declaration of cancellation; rather, we are entitled to demand only the return of the Products and reserve the right to cancel the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dis-pensable according to the statutory provisions.
4. Until revocation in accordance with subpara. 4.3 below, the Buyer is authorized to resell and/or process the Products subject to the retention of title in the ordinary course of business. In these cases, the following provisions shall apply:
4.1 The retention of title shall extend to the full value of the goods resulting from the pro-cessing, mixing or combining of our Products (“Resulting Products”), and we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in the amount of the invoice value of the processed, mixed or combined Products. In all other respects, the same shall apply to the Resulting Products as to the Products deliv-ered under retention of title.
4.2 The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the Products or the Resulting Products in total or in the amount of our possible co-ownership share in accordance with the above subparagraph (“Assigned Claims”). We accept the assignment. The obligations of the Buyer stated in § 6 para. 2 shall also apply with regard to the Assigned Claims.
4.3 Besides us, the Buyer shall remain authorized to collect the Assigned Claims. We un-dertake not to collect the Assigned Claims as long as the Buyer fulfils his payment obli-gations to us, there is no defect in his ability to perform and we do not assert the reten-tion of title by exercising a right in accordance with § 6 para. 3. Should this be the case, we can demand that the Buyer informs us of the Assigned Claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. In this case, we shall also be entitled to re-voke the Buyer’s authorization to resell and process the Products subject to retention of title.
4.4 If the value of the securities that can be realized exceeds our claims by more than 20 %, we shall release securities of our choice at the request of the Buyer.
§ 7 Warranty Claims of the Buyer
1. The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including incorrect and incomplete delivery as well as im-proper assembly/installation or defective instructions), unless otherwise specified be-low. However, the statutory provisions on the rights of the Buyer arising from separately issued warranties on the part of the manufacturer, shall remain unaffected.
2. We shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of when the contract is concluded (Sec. 442 of the German Civil Code). Furthermore, the Buyer’s claims for defects require that it has complied with its statutory inspection and notification obligations (Secs. 377, 381 of the German Com-mercial Code (Handelsgesetzbuch – HGB). In any case, obvious defects must be re-ported in writing within ten (10) working days of delivery and defects not recognizable during the inspection within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or to report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of Products intended for assembly, mounting or in-stallation, this shall also apply if the defect only became apparent after the correspond-ing processing as a result of a breach of one of these obligations; in this case, in partic-ular, the Buyer shall have no claims for reimbursement of corresponding costs (removal and installation costs within the meaning of Sec. 439 para. 3 of the German Civil Code).
3. If the delivered Product is defective, we may initially choose whether to provide subse-quent fulfilment (Nacherfüllung) by repairing the defect (Nachbesserung) or by deliver-ing a defect-free good (Nachlieferung). If the type of subsequent fulfilment chosen by us is unreasonable for the Buyer in the individual case, it may refuse it. Our right to re-fuse subsequent fulfilment under the statutory conditions remains unaffected.
4. We are entitled to make the subsequent fulfilment owed dependent on the Buyer pay-ing the purchase price due. However, the Buyer shall be entitled to retain a reasonable portion of the purchase price in proportion to the defect.
5. The Buyer must give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected Product for inspection purposes. In the event of a replacement delivery (Nachlieferung), the Buyer must return the defective Product to us at our request in accordance with the statutory provisions; however, the Buyer has no claim for return. Subsequent fulfilment shall not include the removal, dis-mantling or disassembly of the defective Product or the installation, attachment or as-sembly of a defect-free Product if we were not originally obliged to perform these ser-vices; the Buyer’s claims for reimbursement of corresponding costs shall remain unaf-fected.
6. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent fulfilment, in particular transport, travel, labour and material costs as well as any dismantling and installation costs in accordance with the statutory provisions and these T&Cs if a defect actually exists. Otherwise, we may demand compensation from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or could have recognized that there was in fact no defect or was late in reporting the defect within the meaning of § 7 para. 2.
7. Claims of the Buyer for reimbursement of expenses pursuant to Sec. 445a para. 1 of the German Civil Code are excluded unless the last contract in the supply chain is a consumer goods purchase (Secs. 478, 474 of the German Civil Code).
§ 8 Force Majeure
1. Events of force majeure which make performance significantly more difficult or impos-sible for us shall entitle us to bring forward the fulfilment of our obligations or to post-pone them for the duration of the hindrance plus a reasonable period of time thereafter. Force majeure is any event beyond our control, for which we are not responsible, in-cluding, but not limited to, war, mobilization, acts of sabotage, terrorist attacks, trade restrictions, embargoes, supply boycotts, epidemics, pandemics and statutory, regula-tory or sovereign restrictions on public and economic life caused by these, natural dis-asters, explosion, lightning, fire, storm/hurricane, destruction of public infrastructure (energy, telecommunications, transport), nationalization as well as strike and lockout. We shall inform the Buyer of any force majeure events and endeavor to take the Buy-er’s interests into account insofar as we have any influence over them. The statutory rights of the Buyer, in particular in the event of an exclusion of the obligation to perform, in particular due to impossibility or unreasonableness of performance and/or subse-quent fulfilment, shall remain unaffected. If and to the extent that the force majeure event lasts longer than six (6) months, the Buyer shall have the right to withdraw from the order affected by the force majeure event.
2. The Party for which a case of force majeure has occurred must inform the other Party immediately of its occurrence and of its subsequent cessation.
§ 9 Liability
1. We shall be liable without limitation for intent and gross negligence, as well as for dam-ages resulting from injury to life, limb or health and in accordance with the Product Lia-bility Act.
2. In cases of a slightly negligent breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which Buyers may regularly rely and trust (so-called cardinal obligation), our liability shall be limited to the occurrence of the damage foreseeable and typically occurring at the time of conclusion of the contract. § 9 para. 1 remains unaffected.
3. In the cases covered by § 9 para. 2, our liability shall be limited to 50% of the amount of the respective order value. Indirect and consequential damages including loss of profit are excluded.
4. Unless expressly agreed otherwise, any further liability on our part is excluded.
5. The above liability provisions shall apply accordingly to the behavior of and claims against our employees, legal representatives and vicarious agents.
§ 10 Limitation Period
1. By way of derogation from Sec. 438 para. 1 No. 3 of the German Civil Code, the gen-eral limitation period for claims arising from material defects and defects of title is two years from delivery for compressed air products and one year from delivery for any other products. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. The aforementioned limitation periods for purchase contracts also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the Prod-ucts, unless the application of the regular statutory limitation period (Secs. 195, 199 of the German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the Buyer pursuant to § 9 para. 1 shall become time-barred ex-clusively in accordance with the statutory limitation periods.
§ 11 Data Protection
The Parties undertake to comply with the provisions of data protection law, including, where applicable, the provisions of the Federal Data Protection Act (Bun-desdatenschutzgesetz – BDSG) and the EU General Data Protection Regulation (EU-Datenschutzgrundverordnung – DSGVO). Further information regarding the processing of personal data can be found in our Privacy Notice.
§ 12 Confidentiality
1. The Parties shall treat as confidential all business secrets including technical drawings, Bills of Material (BOM), designs (subject to IP rights or not), pricing, offers, calculations and the contents of the ongoing business relationship as well as other information of the other party marked as confidential or are recognizable as confidential (“Confiden-tial Information”). The receiving party (“Recipient”) shall treat the Confidential Infor-mation with the same care as it treats its own Confidential Information of the same sen-sitivity, but at least with the care of a prudent businessman.
2. Use of the Confidential Information is limited to the use in connection with the ongoing business relationship between the Parties. Confidential Information may not be dis-closed to third parties without the prior consent of the disclosing Party. Consent must be given in writing. No third parties within the meaning of this subsection are affiliated companies of the Parties within the meaning of Secs. 15 et seq. of the German Stock Corporation Act (Aktiengesetz – AktG) and consultants who are obliged by law to main-tain confidentiality.
3. To the extent required by applicable law, the Recipient is authorized to disclose and transfer Confidential Information. To the extent permitted by applicable law, the Recipi-ent shall inform the disclosing Party prior to the disclosure of Confidential Information.
4. Excluded from the obligation of confidentiality is information
a) that was already generally known when the contract between the Parties was concluded or subsequently becomes generally known without breach of the confidentiality obligations contained in these T&Cs;
b) which the Recipient has developed independently; or
c) the Recipient has received from third parties.
The burden of proving the existence of the exceptions set forth in this paragraph shall be on the Party invoking the exception.
§ 13 Final Provisions
1. The laws of the Federal Republic of Germany shall apply exclusively, excluding the conflict of laws provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising from and in connection with the contract between the Parties shall be Aachen, Germany, insofar as this is legally permissible.
3. Should individual provisions of the contract with the Buyer or individual provisions of these T&Cs be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The same applies if a shortcoming is subsequently discov-ered during the execution of the contract or in these T&Cs. In this case, the statutory provisions shall apply in place of the invalid provision.
4. Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, cancellation or reduction) must be made in writing. Written form within the meaning of these T&Cs includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements remain notwithstanding.
5. Verbal collateral agreements shall not become part of the contract unless the contract-ing parties have mutually waived the written form requirement in writing. Amendments and additions to the contract must always be made in writing in order to be valid. This also expressly applies to a cancellation of the written form requirement itself.
6. In the event of any discrepancies between the German and English version of these T&Cs, the German version shall prevail.