Terms and Conditions

1. For all business transactions between us and the buyer, client, or orderer – hereinafter referred to as the orderer – these Terms and Conditions apply exclusively in addition to other contractual agreements. We do not recognize the orderer’s Terms and Conditions – even in case of unconditional performance or acceptance of payment – unless we expressly agree to their validity in writing.
2. The orderer’s Terms and Conditions include, in addition to their General Purchase Conditions, quality assurance agreements, framework supply contracts, provision contracts, consignment stock agreements, and confidentiality agreements of the orderer, insofar as the regulations therein have not been negotiated with us.
3. These Terms and Conditions apply only to business transactions with entrepreneurs as defined in § 14 of the German Civil Code (BGB).
4. These Terms and Conditions also apply to all future business relationships without renewed inclusion until new Terms and Conditions are provided by us.
5. All agreements made between us and the orderer during contract negotiations must be recorded in writing for verification purposes and confirmed by both parties.
6. Side agreements, subsequent contract changes, and the assumption of a guarantee, particularly assurances of characteristics, or the assumption of a procurement risk require written form, insofar as they are made by persons not authorized to represent.
7. Our silence does not imply consent.

1. Our consultation extends as product and service-related advice exclusively to the products supplied and services provided by us. It does not extend to contract-independent consultation, i.e., statements given without products being sold or services being provided by us.
2. Our consulting services are based on empirical values. If our consultation extends to circumstances over which we have no influence, our advice is non-binding. Omitted statements do not constitute consultation.

1. Our offers are non-binding; they are considered as an invitation to submit an offer.
2. The initial processing of an offer is usually free of charge. Further offers and draft work are only free of charge insofar as the supply contract becomes and remains valid.
3. Descriptions and illustrations of our goods and products in technical documents, catalogs, brochures, circulars, advertisements, and price lists are non-binding, unless their inclusion in the contract has been expressly agreed; they do not release the orderer from conducting their own examinations. Product and service descriptions on the internet can, by nature, only be general; if the orderer wishes to derive binding quality agreements or suitability for use for their intended application, they must refer to this in the order.
4. In principle, the order placed by the orderer constitutes the offer to conclude a contract.
5. All details for order execution must be provided in the order. This applies to all deliveries, services, work, and other performances by us. This includes, in particular but not limited to, details on article designation, quantity, dimensions, material, material composition, pre-treatments, processing specifications, treatment instructions, storage, standards, as well as all other technical parameters and physical characteristics. Missing, incorrect, or incomplete information is expressly considered not agreed upon and does not establish any obligations on our part, neither in terms of fulfillment and warranty nor in terms of damage claims.
6. If the order placed by the orderer deviates from our offer, the orderer must separately highlight the deviations.
7. We are entitled to obtain further information that serves the proper execution of the order.
8. Orders should be placed in writing; orders transmitted verbally or by telephone are executed at the orderer’s risk.
9. If the orderer withdraws an order accepted by us, we are entitled, without prejudice to the possibility of claiming higher actual damages, to charge 10% of the delivery or service price for the costs incurred by processing the order and for lost profit. The orderer reserves the right to prove lesser damages.
10. The acceptance of the order by us occurs within 4 weeks unless another acceptance period has been agreed upon.
11. Our services are defined in the order confirmation.
12. We reserve the right to perform or have performed the processing of the delivery or service items without additional costs for the customer at another facility.

1. For delivery contracts on call, unless otherwise agreed, binding quantities must be communicated to us by call-off at least 3 months before the delivery date. In individual cases, it may be necessary to extend this period, e.g., due to material delivery times.
2. Additional costs caused by a delayed call-off or subsequent changes to the call-off regarding time or quantity by the customer shall be borne by the customer; our calculation shall be decisive in this case.
3. Unless otherwise agreed, all call-off orders must be accepted within one year after the order is placed, without the need for a request for acceptance. If this period has expired, we are entitled to invoice the goods and ship them at the customer’s cost and risk or to immediately withdraw from the contract.

1. For changes to the delivery or service item requested after the conclusion of the contract, a separate contractual agreement is required.
2. We reserve the right to make appropriate changes to the delivery or service item in case of missing or incorrect information. The customer shall bear any disadvantages due to missing or incorrect information, in particular additional costs or damages.
3. Technical changes to the delivery or service item that do not jeopardize the contractual objective are reserved.
4. Partial deliveries or services are permissible insofar as they do not significantly impair the use and do not jeopardize the purpose of the contract. They can be invoiced separately.

1. Unless otherwise agreed, we deliver “ex works” according to the EXW clause of INCOTERMS 2010. The notification of readiness for dispatch or collection by us is decisive for compliance with the delivery date or delivery period.
2. If a delivery or performance period has been agreed, it begins with the dispatch of our order confirmation, but not before complete clarification of all details of the order and the proper fulfillment of all cooperation obligations of the customer; the same applies to delivery or performance dates.
3. In case of mutually agreed changes to the order item, delivery or performance periods and delivery or performance dates must be newly agreed. This also applies if the order item has been renegotiated after the conclusion of the contract without any changes being made to the order item.
4. Delivery or performance periods and delivery or performance dates are subject to defect-free and timely pre-delivery as well as unforeseeable production disruptions.
5. The delivery or performance time is met if the delivery or service item has left our plant or has been handed over to the commissioned transport company in our plant or we have indicated readiness for collection by the expiry of this period.
6. We are entitled to provide the agreed delivery or service before the agreed time.
7. If we can foresee that the goods cannot be delivered within the delivery period, we will inform the customer immediately in writing, communicate the reasons for this, and if possible, state the expected delivery date. The customer is only entitled to withdraw from the contract if we are responsible for the non-compliance with the delivery date and the customer has unsuccessfully set us a reasonable grace period, unless the setting of a deadline is dispensable according to the statutory provisions. §7 Default of Acceptance.
8. If the customer does not accept the goods on the agreed delivery date or at the end of the agreed delivery period due to circumstances for which the customer is responsible, we can demand compensation for our additional expenses incurred as a result. In particular, we are entitled to charge the customer storage costs amounting to 0.5% for each started month, but not exceeding a total of 5% of the delivery or service price. The contracting parties are free to provide evidence of higher or lower storage costs.
9. We are further authorized to determine a suitable storage location at the customer’s cost and risk and to insure the delivery or service items at the customer’s expense.
10. If we are entitled to claim damages instead of performance, we may demand 15% of our price as compensation, without prejudice to the possibility of asserting a higher actual damage, unless the customer proves that no damage has been incurred at all or that it is substantially lower than the lump sum.

In cases of force majeure, our delivery and performance periods shall be extended by the duration of the disruption. This includes, but is not limited to, circumstances beyond our control, such as war, fire damage, civil unrest, strikes, lockouts, traffic disruptions, official decrees, state import or export restrictions, business interruptions, or significant operational disruptions, such as material or energy shortages at our company, commissioned subcontractors, or upstream suppliers. This also applies if we were already in default when these circumstances occurred, unless we caused the delay intentionally or through gross negligence.

We shall inform the customer of the beginning and end of such obstacles without delay. If delivery or performance is delayed by more than six weeks, both the customer and we are entitled to withdraw from the contract within the scope of performance affected by the disruption. The contracting parties are not entitled to any compensation in this respect.

1. Unless otherwise agreed, all prices are in Euro net ‘ex works’ plus statutory value-added tax at the time of invoicing. Additional costs such as packaging, freight, shipping costs, customs, assembly, insurance, and bank charges will be charged separately. We will only insure goods to be shipped at the request and expense of the customer.
2. In the case of contracts with a term of more than 12 months or indefinite contracts, if there is a significant change in wage, material, or energy costs, each contracting party is entitled to demand negotiations for an appropriate adjustment of the price, taking these factors into account.
3. We are entitled to change the agreed price appropriately if changes occur before or during the execution of the order because the customer requests changes or the information provided and documents supplied by the customer were incorrect, provided that these are not obvious errors that we could have clarified with the customer upon receipt.
4. If a binding order quantity has not been agreed, we base our calculation on the non-binding order quantity expected by the customer for a certain period (target quantity). If the customer purchases less than the target quantity, we are entitled to increase the unit price appropriately. If the customer purchases more than the target quantity, we will reduce the unit price appropriately, provided that the customer has announced the additional requirement at least 3 months before delivery.
5. Unless otherwise agreed, invoices are due net within 14 days from the invoice date. They are to be paid without deductions. In case of non-payment, the customer is in default upon due date without further reminder. Discounts and rebates are only granted by separate agreement.
6. Partial payments and settlement by bill of exchange require a separate prior agreement. Discount charges and bill charges are borne by the customer. Invoice settlement by check or bill of exchange is only for the purpose of fulfillment and is only considered payment after unconditional credit.
7. If we have several outstanding claims against the customer and payments by the customer are not made for a specific claim, we are entitled to determine which of the outstanding claims the payment was made for.
8. In case of late payment, deferment, or partial payment, we are entitled to charge standard bank interest on arrears, but at least 9 percentage points p.a. above the respective base rate of the ECB, and to withhold further services until all due invoices have been settled. Proof of higher damages remains reserved.
9. By placing the order, the customer confirms their solvency or creditworthiness. If justified doubts arise about the customer’s ability to pay or creditworthiness, e.g., due to slow payment, default in payment, or check protest, we are entitled to demand security or cash payment concurrently against performance. If the customer does not comply with this request within a reasonable period set for them, we can withdraw from the unfulfilled part of the contract or suspend our deliveries until receipt of the payments. The period is dispensable if the customer is recognizably unable to provide security.
10. The customer is only entitled to offset against our claims if their counterclaim is undisputed by us or has been legally established or is ready for decision. This prohibition of set-off does not apply to counterclaims from the same contractual relationship. The assignment of claims directed against us requires our consent.
11. The purchaser only has a right of retention if the counterclaim is based on the same contractual relationship and is undisputed or legally established or ready for decision, or if we have substantially violated our obligations from the same contractual relationship despite written warning and have not offered adequate security.
12. If a service provided by us is indisputably defective, the purchaser is only entitled to retention to the extent that the retained amount is in reasonable proportion to the defects and the anticipated costs of remedying the defect.
13. The payment dates remain in effect even if delays in delivery occur through no fault of our own.
14. If value-added tax is not included in our invoice, particularly because we assume an “intra-community delivery” within the meaning of § 4 No. 1 b in conjunction with § 6 a of the German VAT Act based on the purchaser’s information, and we are subsequently charged with a value-added tax payment liability (§ 6 a IV VAT Act), the purchaser is obliged to pay us the amount with which we are charged. This obligation exists regardless of whether we have to pay value-added tax, import turnover tax, or comparable taxes retrospectively in Germany or abroad.
15. We are entitled to demand a reasonable advance payment upon conclusion of the contract. No interest will be paid on this.
16. Our payment claims become statute-barred within 5 years, unless longer periods are legally provided for. The commencement of the limitation period is governed by § 199 of the German Civil Code.

1. The place of performance for the services ordered and payments is our registered office.
2. The purchaser is obliged to accept the goods as soon as we have notified them of the completion of the ordered services. If the purchaser does not accept the service within two weeks of notification, the acceptance is deemed to have taken place.
3. The risk of loss, destruction, or damage to the goods passes to the purchaser upon notification of the completion of the goods. If shipment has been agreed, the risk passes to the purchaser when the goods are handed over to the commissioned transport company, such as the railway, or to the forwarding agent or carrier.
4. Unless otherwise agreed, we determine the type of shipment and means of transport as well as the type and extent of packaging. Disposable packaging is disposed of by the purchaser.
5. If the shipment is made in returnable packaging, these must be returned freight-free within 30 days of receipt of the delivery. The purchaser is responsible for loss and damage to the returnable packaging. Returnable packaging may not be used for other purposes or to hold other objects. They are intended solely for the transport of the delivered goods. Labels must not be removed.
6. In the event of damage to or loss of the goods during transport, the purchaser must immediately arrange for an inventory to be taken and notify us of this. Claims arising from any transport damage must be asserted immediately by the purchaser with the forwarding agent.
7. Freight costs paid by us are considered only as an advance for the purchaser. Unless there is a delay in delivery for which we are responsible and we have therefore determined the more urgent shipping method ourselves, additional costs for urgent shipping methods requested by the purchaser, such as express rail or air freight, shall be borne by the purchaser, even if we have agreed in individual cases to bear the freight costs.

1. The purchaser is obliged to inspect the goods immediately after delivery in accordance with § 377 of the German Commercial Code or comparable foreign or international provisions, and to notify us of any defects and damages discovered during this inspection as well as those discovered later immediately after their discovery. Otherwise, the goods are deemed to have been approved as free from defects. For services and work performances, the regulation of § 377 of the German Commercial Code applies accordingly. Notices of defects must be made in writing. A notice in text form, e.g. as an email, is not sufficient.
2. The use of defective deliveries or services is not permitted. If a defect could not be detected upon receipt of goods or performance of services, any further use of the delivery or service item must be stopped immediately after later discovery.
3. The purchaser shall provide us with the complained goods immediately after the notice of defect and shall allow us the time necessary to examine the complained defect. In the case of unjustified complaints, we reserve the right to charge the purchaser with the costs incurred for the inspection.
4. The notification of defects does not release the customer from complying with their payment obligations.

1. The quality of the delivered items or services is exclusively based on the agreed technical delivery specifications. If we are required to deliver according to drawings, specifications, samples, or other requirements of the customer, they assume the risk of suitability for the intended purpose.
2. The decisive factor for the contractual condition of the goods is the time of transfer of risk according to § 10 of these Terms and Conditions.
3. If a material defect in our delivered items or services existed at the time of transfer of risk, we are entitled, at our discretion, to remedy the defect or provide a replacement within a reasonable period. If we fail to do so or do not comply with the contract, the customer must set a final deadline in writing for subsequent performance. After this deadline has expired without success, the customer is entitled to demand a reduction in price, withdraw from the contract, or have the necessary rectification carried out by themselves or a third party at our expense.
4. For third-party products, including those installed or otherwise used in our products, we are entitled to initially limit our liability to the assignment of warranty claims that we have against the supplier of the third-party products, unless satisfaction from the assigned right fails or the assigned claim cannot be enforced for other reasons. In this case, the customer is again entitled to the rights from the preceding paragraph 2.
5. Claims by the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded insofar as the expenses increase because the goods were subsequently moved to a location other than the customer’s branch office.
6. The same warranty conditions apply to replacement deliveries and repairs as for the originally delivered item.
7. Claims by the customer for material defects are excluded if the deviation from the quality only insignificantly impairs the use or suitability for use or the value of the goods. This is the case, for example, with a visually barely recognizable deviating quality that does not affect usability.

1. Orders executed according to drawings, sketches, or other information provided to us are carried out at the customer’s risk. If we infringe on third-party property rights as a result of executing such orders, the customer shall indemnify us against claims by these rights holders. The customer shall bear any further damages.
2. Our liability for any infringement of property rights in connection with the application of the delivered items or services or with the combination or use of the delivered items or services with other products is excluded.
3. In the case of legal defects, we are entitled, at our discretion, to obtain the necessary licenses regarding the infringed property rights or to eliminate the defects of the delivered item or service by providing a delivered item or service modified to an extent reasonable for the customer.
4. Our liability for the infringement of third-party property rights extends only to such property rights that are registered and published in Germany.

1. We are liable for the obligations of the company only with the company’s assets.
2. In case of simple negligence, we are only liable for the breach of an essential contractual obligation. For gross negligence, we are also liable for the breach of non-essential contractual obligations.
3. Liability in the aforementioned cases is limited to the foreseeable damage typical for the contract. In the case of warranted characteristics, our liability is limited to the scope and amount of our company liability insurance. The coverage amount for the insurance cases covered in the insurance contract is 5 million euros.
4. Claims for damages due to intentional breach of contractual obligations by us, claims due to personal injury, and claims under the Product Liability Act are subject to statutory provisions.
5. For tortious claims, we are liable in accordance with contractual liability; restrictive liability agreements from the contract also apply to the customer.
6. Any further liability for damages beyond the above regulations is excluded.
7. Recourse claims of the customer against us exist only insofar as the customer has not made any agreements with their buyer that go beyond the statutory claims for defects and damages.
8. Our liability is excluded to the extent that the customer has effectively limited their liability towards their own customers.
9. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, agents, and vicarious agents.
10. To the extent that liability is excluded or limited according to the above, the customer is obligated to indemnify us from claims by third parties.
11. In all other respects, the statutory provisions apply.
12. The customer is obligated to notify us immediately in writing of any claims asserted by third parties and to reserve all defensive measures and settlement negotiations for us.

1. The limitation period for claims and rights due to defects in our products, services, and work performances, as well as the resulting damages, is 1 year. The start of the limitation period is governed by statutory provisions. The above shortening of the limitation period does not apply if the law prescribes longer periods in cases of §§ 438 para. 1 no. 2, 479 and 634 a para. 1 no. 2 of the German Civil Code (BGB).
2. The limitation period according to the preceding paragraph 1, sentence 1 also does not apply in cases of intent, if we have fraudulently concealed the defect or have assumed a guarantee of quality, for claims for damages due to personal injury or infringement of a person’s freedom, for claims under the Product Liability Act, and in the case of a grossly negligent breach of duty.
3. Subsequent performance measures neither suspend the limitation period applicable to the original performance nor cause the limitation period to restart.

1. We retain ownership of all contractual items until full settlement of all claims due to us from the business relationship with the customer. We reserve all property rights and copyrights to the provided illustrations, drawings, calculations, and other (technical) documents.
2. If our property is processed, combined, or mixed with third-party property, we acquire ownership of the new item in accordance with § 947 of the German Civil Code (BGB).
3. If processing, combination, or mixing occurs in such a way that the third-party performance is to be regarded as the main item, we acquire ownership in proportion to the value of our performance to the third-party performance at the time of processing, combination, or mixing.
4. If we acquire ownership of an item through our performance, we retain ownership of this item until all existing claims from the business relationship with the customer have been settled.
5. The customer is obligated to store the reserved goods carefully and, if necessary, to carry out maintenance and repair work at their own expense in a timely manner. The customer must insure the reserved goods against loss and damage at their own expense. Any security claims arising in the event of damage are to be assigned to us.
6. The customer is entitled to resell the item that is (co-)owned by us in the ordinary course of business as long as they fulfill their obligations from the business relationship with us. For this case, the claim arising from the resale is considered assigned to us in the proportion that the value of our performance secured by the retention of title bears to the total value of the resold goods. The customer remains authorized to collect this claim even after the assignment. Our authority to collect this claim ourselves remains unaffected.
7. The customer’s right to dispose of the goods under our retention of title and to collect the claims assigned to us expires as soon as they no longer meet their payment obligations and/or an application for the opening of insolvency proceedings is filed. In these aforementioned cases, as well as in other cases of breach of contract by the customer, we are entitled to take back the goods delivered under retention of title without notice.
8. The customer shall inform us immediately if there are risks to our reserved property, especially in case of insolvency, inability to pay, and enforcement measures. At our request, the customer must provide all necessary information about the stock of goods (co-)owned by us and about the claims assigned to us, as well as inform their customers of the assignment. The customer shall support us in all measures necessary to protect our (co-)ownership and bear the resulting costs.
9. For all claims arising from the contract, we have a lien on the items of the customer that have come into our possession on the basis of the contract. The lien can also be asserted for claims from previous deliveries or services, insofar as these are related to the delivery or service item. For other claims from the business relationship, the lien applies insofar as it is undisputed or legally established. Sections 1204 et seq. of the German Civil Code and Section 50 Paragraph 1 of the Insolvency Statute apply accordingly.
10. If the realizable value of the securities exceeds our claims by more than 15%, we will release securities of our choice at the customer’s request.

1. Design and calculation documents, as well as manufacturing instructions and any kind of documentation remain our property and are exempt from any obligation to surrender.
2. If the customer suspends or terminates cooperation during the production time of the manufacturing equipment, all manufacturing costs incurred up to that point shall be borne by the customer, unless we are responsible for the termination.

1. Unless otherwise agreed, we are entitled to terminate contracts of indefinite duration with a notice period of 6 months. The right to terminate for good cause pursuant to Section 314 of the German Civil Code and the rights of withdrawal and termination provided for in these General Terms and Conditions remain unaffected.
2. An order cancellation by the customer is generally not recognized by us. If we agree to it in exceptional cases, we are entitled, at our discretion, to demand compensation for damages instead of performance or reimbursement of futile expenses.

1. Directive 2002/95/EC (RoHS) and the Electrical and Electronic Equipment Act contain a prohibition on the use of certain environmentally hazardous substances, such as lead, which may no longer be used in certain electrical and electronic equipment.
2. The customer must therefore check before placing an order whether the affected workpieces fall within the scope of the ElektroG (Electrical and Electronic Equipment Act) after further processing and inform us if this is the case. If we do not receive any notification, we assume that the workpieces are not installed in or connected to products that are to be assigned to the product catalog of Section 2 Paragraph 1 of the ElektroG.
3. In the event of a violation of the ElektroG, our liability towards the customer is excluded insofar as this violation is based on a breach of the customer’s notification obligation. Should claims be made against us by third parties due to this violation, the customer shall indemnify us from these claims.

1. The customer undertakes to treat all aspects of the business relationship worthy of protection confidentially. In particular, he will treat all non-obvious commercial and technical details that become known to him through the business relationship as trade secrets. Information or aspects of the business relationship that were already publicly known at the time of disclosure, as well as information or aspects of the business relationship that were demonstrably already known to the contractual partner before disclosure by us, are not subject to the confidentiality obligation. The customer shall ensure that his employees are also obligated to maintain confidentiality accordingly.
2. Reproduction of the documents provided to the customer is only permitted within the framework of operational requirements and copyright provisions.
3. All documents may not be made accessible to third parties in whole or in part or used outside the purpose for which they were provided to the customer without our written consent.
4. Even partial disclosure of the business relationship with us to third parties may only take place after our prior written consent; the customer should also obligate the third parties to maintain confidentiality within the framework of a similar agreement.
5. The customer may only advertise the business relationship with us after our prior written consent.
6. The customer is also obligated to maintain confidentiality after the end of the business relationship.

1. The place of jurisdiction is, at our discretion, our place of business or the place of jurisdiction of the customer.
2. The law of the Federal Republic of Germany is exclusively applicable to the business relationships with the customer. The applicability of the CISG – ‘UN Sales Convention’ is excluded.
3. Should individual parts of these Terms and Conditions be invalid, the validity of the remaining provisions shall not be affected. The contracting parties shall endeavor to replace the invalid clause with another clause that comes closest to the economic purpose and legal meaning of the original wording and is in accordance with the relevant statutory provisions.
4. We collect and process data in accordance with the EU General Data Protection Regulation and the Federal Data Protection Act.

XTRACTION GmbH
Eichlesstraße 16
D-89129 Langenau

+49 731 141108-0
info@xtraction-germany.de

www.XTRACTION-GERMANY.de

As of: June 2022