AGB-Molytun GmbH

§ 1 Validity, general

  1. These terms and conditions apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB and not to consumers. Unless otherwise agreed in writing, the following terms and conditions shall apply exclusively to all contracts concluded between you and us – including future contracts – concerning our deliveries and services. Deviating, conflicting or supplementary General Terms and Conditions of Business of yours shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to you without reservation in the knowledge of your General Terms and Conditions.
  2. These Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods, irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). However, they also apply to contracts for work and services.
  3. Legally relevant declarations and notifications that you must make to us after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective. Commercial representatives, brokers or agents are not authorized to receive such declarations and notifications.

§ 2 Offer and conclusion of contract

  1. Our offers are subject to change and non-binding. This also applies if we have provided you with catalogs, technical documentation (such as drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents to which we reserve ownership rights and copyrights. Offers, as well as our order confirmations, are always subject to a positive credit check. Unless otherwise stated, the validity of an offer is between 3 and 10 days and is noted on the respective offer. After acceptance of the offer, you will receive a written order confirmation. If the offer is accepted after the expiry of the validity period, we reserve the right to quote a new price.
  2. Your order for the goods shall be deemed to be a binding contractual offer. A contract is only concluded when we issue a written order confirmation. If there is no acceptance within the offer period, the offer is invalid
  3. Acceptance shall be declared exclusively by means of a written order confirmation.
  4. Verbal agreements, assurances or similar shall only become binding upon our written confirmation.
  5. Technical changes as well as changes in shape, color, material and/or weight are not possible after the order confirmation, except in the case of custom-made products. In the case of custom-made products, any technical changes must be discussed in advance and agreed individually, taking into account feasibility and cost.
  6. We reserve our property rights and copyrights to our documents, such as illustrations, drawings and calculations, which are made available to you. They may not be made accessible to third parties without our express written consent and are to be used exclusively for the execution of the specific contractual relationship. They must be returned, together with any copies that may have been made, at the latest upon completion of the service and at any time at our request. You have no right of retention.
  7. There is no statutory right of withdrawal, as these GTC and the offers are aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). The provisions of the right of withdrawal according to §§ 355 ff. BGB do not apply. If the contract has been concluded between the parties, it shall be deemed binding and can only be canceled or amended under the agreed conditions and in accordance with the corresponding contractual agreements. Ordinary termination after order confirmation is excluded.

§ 3 Delivery periods and dates

  1. The delivery period shall be agreed individually or specified by us upon acceptance of the order.
  2. Delivery periods begin with our technical clarification, if such clarification is required, otherwise with the date of our order confirmation, but not before you have provided the documents, approvals and releases to be procured by you and receipt of any agreed down payment.
  3. If you order changes or additions that are not only minor in scope, dates and deadlines based on the original subject matter of the contract shall lose their validity.
  4. We are entitled to assign services to subcontractors. You will receive information about the subcontractors used on request.
  5. In the case of contracts for work and services, we shall be entitled to reject subsequent changes to the scope of performance without stating reasons, unless the change serves the appropriate execution, our company is equipped and ready to perform and insofar as the change only represents an insignificant change to the construction design.
  6. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform you of this immediately and at the same time inform you of the expected new delivery deadline. If the service is also not available within the new delivery period, only we shall be entitled to withdraw from the contract in whole or in part. We shall immediately reimburse any consideration already provided by you. There shall be no claim for damages due to delay. Further liability shall only exist in the event of gross negligence or intent.
  7. Your rights pursuant to § 8 of these Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected. There shall be no claim for damages for delays in delivery or non-performance of the contract unless the delay is due to intentional or grossly negligent conduct on our part.
  8. In the case of successive delivery contracts, the delivery period shall commence on the date of your call-off, unless a fixed delivery quantity and a fixed delivery date have been agreed in the contract for each partial delivery.
  9. Unless otherwise stated in the contract, in the case of successive delivery contracts you must order the necessary quantities from us in good time in advance and call them off accordingly. If the contract specifies a fixed delivery quantity per period, delivery shall be made automatically in accordance with this agreement. If this is not the case, we are entitled to determine the quantities to be delivered ourselves.
  10. If, in the case of successive delivery contracts, the total quantity stated in the contract is exceeded by the sum of the individual call-offs, no new price agreement is required if the change in the total quantity is merely an addition. In the case of other changes, we reserve the right to make the production of the additional quantity dependent on a new price agreement.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance

  1. Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At your request and expense, the goods will be shipped to another destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
  2. Shipment shall be made in accordance with the Incoterms EXW (Ex Works), unless otherwise agreed. A binding delivery time guarantee is not granted unless this has been expressly agreed in writing. Delivery times are therefore non-binding.
  3. We are entitled to make partial deliveries to a reasonable extent. We are entitled to make excess and short deliveries of the agreed quantity as is customary in the industry.
  4. The risk of accidental loss and accidental deterioration of the goods shall pass to you at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to you upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If you are in default of acceptance, this shall be deemed equivalent to handover or acceptance.
  5. If you are in default of acceptance, if you fail to cooperate or if our delivery is delayed for other reasons for which you are responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).

§ 5 Prices and terms of payment

  1. Unless otherwise agreed in individual cases, the prices from the respective offer shall apply at the time of conclusion of the contract, ex warehouse, plus statutory VAT. All prices are net, i.e. excluding VAT.
  2. In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall always bear the transportation costs ex warehouse as well as the costs of any desired transport insurance. Customs duties, fees, taxes and other public charges must also be borne by the buyer, unless otherwise agreed in the contract.
  3. Our prices are based on the respective offer. If the contract is concluded within the validity period of the offer – usually 7 days or as stated in the offer – the price offered remains unchanged. A separate fixed price agreement is therefore not required. Should there be any significant changes in raw material costs or other relevant factors after expiry of the offer validity period or before conclusion of the contract, we reserve the right to prepare a new offer. In addition, we are entitled to increase the price by a verifiable material price increase surcharge (MIP) if our own raw material purchase prices have increased after conclusion of the contract and before delivery due to general price developments – and not through our fault. The MTR shall be quantified and communicated no later than 15 calendar days prior to delivery. If no notification is given, the originally agreed price shall remain in force. If the price increase by the MTZ exceeds 10% of the original offer price, you have the right to withdraw from the contract within 5 calendar days of receipt of the notification. In the event of an increase of more than 20%, we also have the right to withdraw from the contract. You reserve the right to prove that a raw material price increase did not occur, was not our fault or was foreseeable. In this case, the MTZ shall not apply.
  4. If additional or increased duties – in particular customs duties or taxes – are incurred between conclusion of the contract and delivery due to changes in legal norms, we shall be entitled to increase the agreed purchase price accordingly.
  5. The determination of weight, which is decisive for invoicing, shall take place at the shipping point of our respective delivery plant. However, the customer has the option of collecting the goods himself. In this case, the customer shall be responsible for the transportation costs and all other associated costs.
  6. Unless otherwise agreed, our invoices are due for payment immediately upon receipt without discount. In the event of a positive credit check, we grant a payment term of 30 days. However, we are entitled 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 with the order confirmation at the latest. You shall bear the costs of payment transactions.
  7. If the buyer defaults on payment, he will first receive a reminder. If payment is still not made, a second reminder will be sent. A reminder fee of €40-500 will be charged for each reminder after default to cover processing and administration costs. In addition, the buyer will be charged compensation costs for processing and for non-compliance with the contract. Interest on arrears will not be charged. The compensation costs and the amount of the reminder fees are determined transparently and in advance. However, the seller reserves the right to take all further measures to collect the outstanding debts if the delay persists.
  8. You shall only be entitled to set-off or retention rights to the extent that your claim has been legally established or is undisputed. In the event of defects in the delivery, your counter-rights shall remain unaffected, in particular in accordance with § 7 para. 6 sentence 2 of these Terms and Conditions. You may only exercise rights of retention on the basis of counterclaims arising from the same contractual relationship.
  9. If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by your inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. We shall also be entitled to declare all claims arising from the current business relationship with you due and payable and to withhold outstanding deliveries and services or to perform them only against advance payment or securities.
  10. If additional or increased charges – in particular customs duties, levies, currency compensation – are incurred between conclusion of the contract and delivery due to changes in legal norms, we shall be entitled to increase the agreed purchase price accordingly. The same applies to inspection fees.
  11. An assignment of your claims against us is only effective with our consent. We can only refuse consent for a justified reason.

§ 6 Retention of title

  1. The goods shall remain our property until all claims, in particular the respective balance claim, arising from the business relationship have been settled. This shall also apply to future and conditional claims.
  2. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. You must inform us immediately in writing if an application is made to open insolvency proceedings or in the event of seizure or other access by third parties or damage to or destruction of the goods belonging to us.
  3. If you act in breach of contract, in particular if you fail to pay 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 goods on the basis of the retention of title and to prohibit their resale, processing or removal. We may also enter your premises for this purpose. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If you do not pay the purchase price due, we may only assert these rights if we have previously set you a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
  4. You are entitled to resell the goods subject to retention of title in the ordinary course of business, provided this has been expressly agreed in the contract. Further processing of the goods is also only permitted if this has been contractually agreed, irrespective of whether full payment has already been made. In this case, the following provisions shall apply in addition:
    • If the buyer resells the goods subject to retention of title, he undertakes to inform us of the names and addresses of the purchasers on request.
    • The retention of title shall also extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby 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 proportion to the invoice values of the processed, mixed or combined goods.
    • You hereby assign to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. Your obligations stated in paragraph 2 shall also apply in consideration of the assigned claims.
    • You remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as you meet your payment obligations to us, there is no deficiency in your ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we can demand that you inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In this case, we are also entitled to revoke your authorization to resell and process the goods subject to retention of title.
  5. If the value of the existing securities exceeds the secured claims including ancillary claims (costs) by more than 10%, we are obliged to release securities of our choice at your request. You may provide other securities to secure outstanding claims. If these are recognized by us, you are entitled to the release of the retention of title.
  6. You are obliged to treat the goods with care as long as ownership has not yet been transferred to you. If maintenance and inspection work has to be carried out, you must carry this out in good time at your own expense.

§ 7 Your claims for defects

  1. The statutory provisions shall apply to your rights in the event of material defects and defects of title (including incorrect and short delivery), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) remain unaffected.
  2. The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions that are the subject of the individual contract are deemed to be an agreement on the quality of the goods; it makes no difference whether the product description originates from you, from a third-party manufacturer or from us.
  3. Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulations whether a defect is present or not. However, we accept no liability for public statements made by a third-party manufacturer or other third parties (e.g. advertising statements or declarations of conformity).
  4. Your claims for defects presuppose that you have complied with your statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified immediately in writing. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. If you fail to properly inspect the goods and/or notify us of defects, our liability for the unreported defect shall be excluded.
  5. If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
  6. We are entitled to make the subsequent performance owed dependent on you paying the purchase price due.
  7. You must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, you must return the defective item to us in accordance with the statutory provisions.
  8. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if a defect actually exists. Otherwise, we may demand reimbursement from you of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to you.
  9. If the supplementary performance has failed or if a reasonable deadline set by you for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, you can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
  10. Claims by you for damages or compensation for wasted expenditure shall only exist in accordance with § 8, even in the case of defects, and are otherwise excluded.
  11. The agreement of a guarantee must always be made in writing in order to be valid. A guarantee declaration shall only be effective if it is designated as such by us and describes the content of the guarantee and the duration and territorial scope of the guarantee protection in sufficient detail.

§ 8 Other liability

  1. Unless otherwise stated in these terms and conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
  2. We shall be liable – irrespective of the legal grounds – within the scope of fault-based liability for intent and gross negligence without limitation in accordance with the statutory provisions. In the event of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs)
    • for damages resulting from injury to life, limb or health,
    • for damages arising from the not insignificant breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
  3. Liability for indirect or consequential damages (e.g. loss of profit, loss of production or business interruption) is excluded, except in cases of willful misconduct or gross negligence.
  4. The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims by you under the Product Liability Act.
  5. You may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.

§ 9 Statute of limitations

  1. In deviation from the statutory limitation periods for sales contracts, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
  2. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages by you which are based on a defect in the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. However, claims for damages by you pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

§ 10 Tools

  1. Insofar as you participate in the manufacture of tools for the production of the purchased goods at cost, you shall nevertheless not receive any rights or co-ownership of the tools. Tools in the manufacture of which you have contributed to the costs can be disposed of by us without compensation as soon as the tools have not been in use for more than 5 years – from the time of the last production use.

§ 11 Supplementary provisions for contracts for work

  1. You are responsible for checking the execution documents and dimensions provided. You must inform us immediately of any discrepancies.
  2. If special official permits, approvals or acceptances are required, these must be obtained and arranged by you in good time – at no cost to us. Written documents or acceptance reports must be submitted to us without being requested to do so.
  3. Unless otherwise stated in the contract, an average quality is owed and we are entitled to perform an equivalent service instead of the service described.
  4. You are responsible for any measurements unless expressly agreed otherwise. Dimensions specified by you are binding for us.
  5. Unless otherwise agreed, the handover to you by you (in whole or in part) shall be deemed acceptance, depending on which event occurs first. It is equivalent to acceptance if you do not accept the service within a reasonable period of time specified by us, although you are obliged to do so.
  6. Orders are binding for the buyer. Cancellation is only possible as long as no order confirmation has been issued. After receiving our offer, you have time to accept or reject it. If no rejection is made within this period, we reserve the right to consider the offer invalid. After receipt of the order confirmation, termination of the contract is excluded. The right to extraordinary termination for good cause remains unaffected. Good cause shall be deemed to exist in particular if a party is in material breach of its contractual obligations or if insolvency proceedings are opened or threatened against the assets of a party. If you nevertheless terminate the contract without us being responsible for this, we shall be entitled to the claims regulated in § 649 BGB. However, we are entitled to claim a lump sum of 10% of the net contract price agreed at the time of termination for our expenses and loss of profit instead. Instead of the lump sum, we are also entitled to claim actual damages. You are also entitled to prove that we have not incurred damages in the amount of the lump sum

§ 12 Final provisions, choice of law and place of jurisdiction

  1. You are not authorized to publish information in connection with the contractual services without our consent. The seller processes the customer’s personal data in accordance with the General Data Protection Regulation (GDPR). A detailed privacy policy is available on the website.
  2. These terms and conditions and the contractual relationship between you and us shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The contractual language is German.
  3. If you are a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office. The same applies if you are an entrepreneur within the meaning of § 14 BGB. However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these Terms and Conditions or an overriding individual agreement or at your general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected. For disputes arising from or in connection with this contract, arbitration proceedings may alternatively be agreed in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS).
  4. Amendments or additions to these terms and conditions must be made in writing. Should any provision of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions.
  5. Deviating, conflicting or supplementary general terms and conditions of the buyer shall not become part of the contract unless we have expressly agreed to their validity in writing. This shall also apply if we carry out the delivery or service without reservation in the knowledge of conflicting general terms and conditions of the buyer. Verbal collateral agreements do not exist. Amendments and supplements to this contract must be made in writing.
Sales GTC Molytun GmbH, as of 02.2025