General Terms and Conditions

General Terms and Conditions for Deliveries and Services of Arnold Potthoff GmbH & Co. KG

(as of January 2025)

Scope of application
1. Our terms and conditions apply exclusively; terms and conditions that conflict with or deviate from our terms and conditions or statutory provisions shall not apply unless we have expressly agreed to their validity in writing. This shall also apply if we have not expressly objected to them or if we have carried out deliveries without reservation or accepted payments without reservation.
Conclusion of contract
1. Our contractual offers are always subject to change and non- binding.
2. We can accept contractual offers from the Purchaser within 14 calendar days of submission. The Purchaser shall be bound by his offer until the expiry of this period. The contract is concluded by our written order confirmation. This written form requirement does not include post-contractual amendments and additions. If the order confirmation is received late by the Purchaser, the Purchaser shall inform us of this immediately. Our silence does not constitute reliance on the conclusion of a contract.
3. A contract is concluded at the latest when we carry out a delivery without reservation.
Prices and terms of payment
1. Unless expressly labelled or agreed otherwise, our prices are net, “ex warehouse” (EXW), plus any costs for packaging, freight, insurance, other ancillary costs and the applicable sales tax. In the case of cross-border deliveries, any customs duties, taxes, fees or other public charges incurred shall be reimbursed to us by the Purchaser.
2. The prices stated in the offer and order confirmation are based on the purchase prices of our suppliers valid at the time of conclusion of the contract and our salaries, taxes, social security contributions and freight costs (hereinafter the “cost factors“). These cost factors have a direct influence on the sales price of our deliveries. If cost factors increase by more than five per cent in total between conclusion of the contract and delivery, we may increase the sales prices of our deliveries accordingly.
3. Our invoice claims are due for payment 14 days after receipt of the invoice (without deduction). The timeliness of the payment is determined by the receipt of the payment by us.
4. If our claims are jeopardised by a significant deterioration in the creditworthiness of the Purchaser, which becomes apparent after conclusion of the contract, we shall be entitled to make outstanding deliveries only against advance payment or the provision of reasonable security. If the Purchaser does not provide advance payment or reasonable security within a reasonable period of time, we shall be entitled to withdraw from the contract. Our other rights of cancellation remain unaffected.
5. The Purchaser shall only be entitled to rights of set-off and retention against our claims insofar as counterclaims of the Purchaser have been legally established against us or are undisputed, or the Purchaser’s claim to be set off is reciprocally related to our claim against which the set-off is to be made.
Deliveries and delivery dates
1. We deliver ex warehouse (EXW), unless otherwise specified in these terms and conditions or expressly agreed elsewhere.
2. Partial deliveries are permissible insofar as they are reasonable for the Purchaser, taking into account customary tolerances. The same applies to early delivery.
Our delivery obligations are subject to proper and timely delivery by our suppliers. Retention of title
1. The objects of the deliveries shall remain our property until full payment of all outstanding claims arising from the business relationship (hereinafter referred to as “reserved goods”).
2. The Purchaser is obliged to cooperate in measures necessary to protect our retention of title; in particular, the Purchaser authorises us upon conclusion of the contract to make the entry or priority notice of our retention of title in public registers at the Purchaser’s expense and to fulfil all other formalities required under the applicable property law.
3. The agreed delivery dates shall be deemed to have been met upon notification of readiness for dispatch to the Purchaser, even if the deliveries cannot be dispatched on time through no fault of our own.
4. Insofar as compliance with performance or delivery deadlines or dates is temporarily impossible or significantly impeded due to events of force majeure, our contractual obligations are suspended, and the performance or delivery deadlines or dates are extended accordingly. Force majeure includes in particular such unforeseeable performance hindrances or disruptions that are outside our sphere of influence, could not have been averted or remedied even with the diligence of a prudent businessman and are not only of short duration. Force majeure includes, in particular, natural disasters, civil unrest, partial or general mobilisation, war, civil war, acts of war or warlike behaviour or conditions, imminent threat of war, government intervention or control in the context of the war economy, monetary and trade policy measures or other sovereign measures, riots, terrorism, accidents, official orders, interventions by third parties such as criminal and cybercriminal acts or epidemics. The same applies to strikes and lockouts. If a force majeure event lasts for more than three (3) months, both parties are entitled to withdraw from the contract. In the event of cancellation, the statutory provisions shall apply.
Default
1. Unless we have caused the delay in delivery intentionally or through gross negligence, the Purchaser’s claim for damages due to our delay shall be limited to a maximum of 0.5% of the net price of the deliveries affected by the delay for each full week of the delay in delivery, but in total to a maximum of 5% of the net price of the deliveries affected by the default.
2. If the shipment of deliveries is delayed by more than four (4) weeks after notification of readiness for shipment for reasons attributable to the Purchaser, we may charge the Purchaser storage fees amounting to 0.5% of the net price of the deliveries to be stored for each commenced month of delay, but not exceeding a total of 10% of the net price of the deliveries to be stored (liquidated damages). The Purchaser shall remain entitled to provide evidence of significantly lower damages. We also reserve the right to claim damages in excess of the liquidated damages.
3. In the event of delays in the performance of the deliveries, the Purchaser may only rescind the contract in accordance with the statutory provisions if we are responsible for the delay or if the contractual partner cannot reasonably be expected to adhere to the contract due to the delay.
4. Unless otherwise stipulated above or in clause 11.3, our rights and the rights of the Purchaser due to delays shall be governed by the statutory provisions. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
Passage of risk
1. The risk of accidental loss and accidental deterioration of the deliveries – including partial deliveries – shall pass to the Purchaser if and insofar as we have made the deliveries available for collection at the agreed place of delivery and have notified the Purchaser thereof, at the latest when we have handed over the deliveries to the carrier. Provided that we do not carry out the transport ourselves, the risk of accidental loss and accidental deterioration of the deliveries shall pass to the Purchaser at the latest when they have left our factory premises or warehouse.
2. If the provision, dispatch, handover or acceptance of the deliveries to or by the Purchaser is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance, the risk of accidental loss and accidental deterioration of the deliveries shall pass to the Purchaser at the point in time at which it would have passed to the Purchaser without the aforementioned circumstances.
3. The Purchaser is obliged to insure the goods subject to retention of title at his own expense, in our favour, against theft, breakage, fire, water and other risks at replacement value for the duration of the retention of title. The Purchaser hereby authorises us to assert all claims for compensation arising from these insurances in our own name.
4. The Purchaser must inform us immediately in writing of any seizures, confiscations or other dispositions or interventions by third parties which could lead to the loss of our rights to the reserved goods.
5. If the realisable value of our existing securities we hold against the Purchaser exceeds our secured claims by more than 10%, we shall be obliged to release them to this extent at the Purchaser’s request.
6. During the existence of the retention of title, the Purchaser is permitted to resell the goods only in the ordinary course of business and only under the condition that the Purchaser agrees with its customer on full advance payment or agrees that ownership will transfer to the customer only when the customer has fulfilled its payment obligations and that the goods are handled accordingly only under the condition of full payment. The Purchaser is not entitled to make any other dispositions of the goods subject to retention of title, particularly pledging or transferring them as security.
7. The Purchaser’s claims from the resale of the goods subject to retention of title are hereby assigned to us; the Purchaser is authorised to collect claims from the resale on our behalf. If the reserved goods are sold by the Purchaser together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the reserved goods sold in each case. If the claim from the resale is placed by the purchaser in a current account relationship with his Purchaser, the recognised or causal balance, which is assigned to us in the amount of the resale value of the reserved goods sold in each case, shall take its place after the current account claim has been balanced. In the event of the sale of goods in which we are entitled to co-ownership shares, the assignment of the claim shall apply in the amount of the corresponding resale value of these co- ownership shares.
8. We are entitled to revoke the authorisation granted to the Purchaser to resell and collect the claims if the Purchaser is in default with payments arising from the business relationship or has disposed of the goods subject to retention of title outside the ordinary course of business. The same applies in the event of a significant deterioration in the Purchaser’s financial situation becoming recognisable after conclusion of the contract or in the event of an application for the opening of insolvency proceedings against the Purchaser ‘s assets.
Warranty for material defects
1. The Purchaser is obliged to carefully inspect the deliveries immediately after delivery and must notify us in writing of any obvious material defects immediately, at the latest within 14 days of delivery. Hidden material defects must be reported to us in writing immediately, at the latest within 14 days of discovery. Otherwise, the Purchaser’s claims for material defects due to the failure to give proper notice of defects shall be excluded.
2. We shall not be liable for defects which only insignificantly impair the usability of the delivery concerned, for only insignificant deviations of the deliveries from the agreed quality, for natural wear and tear and for damages arising after the passage of risk as a result of incorrect or negligent handling, excessive use or which arise due to special external influences on the delivery which we did not have to expect.
3. In the event of a material defect at the time of passage of risk, we are obliged, at the written request of the Purchaser, to either subsequently improve the deliveries within a reasonable grace period of or to provide a new delivery (hereinafter referred to as “supplementary performance“). The decision on the type of supplementary performance lies with us. If the defect is limited to a definable part of the delivery, supplementary performance shall be affected by subsequent delivery of a defect-free part. If we replace a defective delivery by subsequent delivery of a defect free part, the replaced parts shall become our property unless we expressly waive this right.
4. Without limiting our statutory rights, we are entitled to refuse supplementary performance within the meaning of Section 439 (4) if the costs of supplementary performance (Section 439 (2) and (3)) exceed 120% of the agreed net price of the delivery.
5. We must be given a reasonable time and opportunity for supplementary performance. If the supplementary performance does not take place within a reasonable period of time set by the Purchaser or if the supplementary performance fails, the Purchaser may, subject to the statutory requirements, either
  1. reduce the price, or
  2. rescind the contract.
6. We are entitled to make supplementary performance dependent on the Purchaser paying the price due for the delivery minus a reasonable amount taking into account the defect.
7. In the case of seller recourse, the purchaser is also obliged, contrary to § 445a para. 2 BGB, to give us the opportunity for subsequent fulfilment within the deadline set by the Purchaser’s buyer. The setting of a deadline is only dispensable if the setting of a deadline is already dispensable in the relationship between the purchaser and his buyer in accordance with § 445a Para. 2 BGB, which is why the purchaser cannot give us the opportunity for supplementary performance.
8. The place of fulfilment for supplementary performance is our warehouse, which is specified in the order confirmation.
9. The statutory provisions shall apply to claims for damages and reimbursement of expenses in accordance with the restrictions set out in clause 10.
10. Further or other claims or rights of the Purchaser against us due to a material defect, beyond those regulated in clauses 8 and 10, are excluded. The statutory special provisions in the event that a consumer goods purchase is at the end of a supply chain (§ 478 BGB) remain unaffected.
Infringement of third-party property rights
1. Rights or claims of third parties based on industrial or other intellectual property shall only constitute a defect in title insofar as these exist in accordance with the usual national standards, including the requirements for the EU patent, in the country of our general place of business and at the general place of business of the Purchaser (“industrial property rights”).
2. If a third party asserts justified claims against the Purchaser due to the infringement of property rights by the delivery at the time of the passage of risk, we shall be liable to the Purchaser as follows:
  1. We shall, at our expense, either obtain a right of use for the deliveries, modify them in such a way that industrial property rights are not infringed or replace them. We shall have the right to choose between the above options.
  2. If this is not possible for us under reasonable conditions, the Purchaser shall be entitled, under the statutory requirements, to reduce the price or withdraw from the contract after a reasonable period of time has expired.
3. The obligations under clause 9.2 shall only apply if the Purchaser notifies us immediately in writing of any claims asserted by third parties, does not acknowledge an infringement of the property rights, and leaves all defensive measures and settlement negotiations to us. If the Purchaser ceases to use the delivery in order to minimise damages or for other important reasons, he is obliged to point out to the third party that the cessation of use does not imply any acknowledgement of the infringement of property rights.
4. Claims of the Purchaser in the event of infringements of industrial property rights are excluded insofar as he is responsible for the infringement of industrial property rights or insofar as the infringement of industrial property rights has arisen due to special requirements of the Purchaser. In such a case, the Purchaser shall indemnify us against all claims asserted against us by third parties on the basis of an infringement of industrial property rights.
5. Our obligation to pay compensation for damages or expenses is governed by clause 10.
6. Further rights and claims of the Purchaser due to an infringement of property rights other than those mentioned in clauses 9 and 10 are excluded.
Damages and reimbursement of expenses
1. Claims for damages and reimbursement of expenses by the Purchaser (hereinafter referred to as “claims for damages“), irrespective of the legal grounds (contract, tort, indemnity or any other area of law), are excluded.
2. The above limitation of liability in clause 10.1 does not apply:
  1. for claims for reimbursement of expenses pursuant to §§ 439 para. 3 p. 1 and 445a para. 1 BGB;
  2. insofar as we are liable under mandatory Product Liability Acts;
  3. insofar as we are liable due to intent or gross negligence;
  4. for claims for damages due to culpable injury to life, body or health;
  5. insofar as we have fraudulently concealed a defect;
  6. insofar as we have assumed a guarantee for the quality of the goods (§ 444 BGB);
  7. in the event of culpable breach of essential contractual obligations, i.e., obligations whose fulfilment is necessary for the proper execution of the contract and on whose compliance the purchaser regularly relies and is entitled to rely. However, our liability for breach of essential contractual obligations shall be limited to compensation for foreseeable damage typical of the contract, except in cases of intent or gross negligence or liability for injury to life, body or health or under mandatory Product Liability Acts.
3. Insofar as our liability is limited in accordance with this clause 10, this shall also apply to the personal liability of our employees, auxiliary persons and legal representatives.
4. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
5. The provision in clause 5 in the event of damage caused by delay shall remain unaffected by this clause 10.
Statute of limitations
1. Claims of the Purchaser due to a material defect or defect of title shall become time-barred 12 months after the start of the statutory limitation period. This does not apply,
  1. in the cases of § 438 para. 1 No. 1 BGB (rights in rem of third parties), §§ 438 para. 1 No. 2, 445b Para. 1 (right of recourse in the case of entrepreneurial recourse), a guarantee of quality and in the case of fraudulent intent (§ 444 BGB);
  2. for claims for damages due to intent or gross negligence, injury to life, limb or health or liability or under mandatory Product Liability Acts.
  In these cases, the statutory limitation period applies.
2. Supplementary performance is carried out by us as a gesture of goodwill and without recognition of a legal obligation. An acknowledgement with the consequence of an interruption of the limitation period shall only exist if we expressly declare this to the Purchaser. With the exception of an expressly declared acknowledgement, no new warranty period shall commence with supplementary performance.
3. The regular limitation period for claims of the Purchaser shall be shortened to 24 months from the start of the statutory limitation period. This shall not apply to claims for damages pursuant to clause 11.1b) and 10.2 e), for which the statutory limitation period shall apply.
Export control
1. The Purchaser is aware that the deliveries may be subject to export and import restrictions. In particular, there may be authorisation requirements or the use of the deliveries abroad may be subject to restrictions. The purchaser will comply with applicable export and import control regulations of Germany, the European Union, Switzerland, and the United States of America, as well as all other relevant regulations, and will provide us with all information we need to comply with the relevant provisions as early as possible upon request.
2. The fulfilment of the contract on our part is subject to the condition that there are no obstacles to fulfilment due to applicable national and international foreign trade regulations or other legal provisions, as well as no embargoes and/or sanctions.
Confidentiality
1. The Purchaser is obliged to treat all information, especially know- how and trade secrets, obtained from us (hereinafter referred to as “Confidential Information”) as confidential with respect to third parties. In particular, the Purchaser is not authorised to disclose or make accessible the Confidential Information to third parties without our prior consent. The Confidential Information shall only be used for the purposes of the contract. The Purchaser shall obligate its employees and other persons who gain access to the Confidential Information in connection with the fulfilment of the contract to maintain confidentiality accordingly.
2. The obligation in clause 13.1 shall not apply to information which (a) was demonstrably already known to the Purchaser at the time of conclusion of the contract or becomes known to the Purchaser from a third party after conclusion of the contract without violating a confidentiality agreement, statutory provisions or official orders, (b) are already generally known at the time of the conclusion of the contract or become generally known later, insofar as this is not based on a breach of this contract, (c) were developed independently by the Purchaser without access to our Confidential Information, or (d) must be disclosed due to legal obligations or by order of a court or an authority.
Miscellaneous
1. The Incoterms 2020 apply to the interpretation of the trade terms.
2. Insofar as a declaration is required to be made in writing according to these terms, maintaining the text form as per § 126b BGB (durable medium, fax, email) is sufficient.
3. In the event that individual provisions of the contract are invalid, the remaining provisions shall remain valid.
Place of performance, place of jurisdiction and applicable law
1. The place of performance for all deliveries and services is our registered office.
2. The exclusive place of jurisdiction for all legal disputes arising from or in connection with the contractual relationship is our registered office. However, we are in any case also entitled to bring an action at the place of fulfilment of the deliveries or at the general place of jurisdiction of the Purchaser.
3. These terms and conditions and the contractual relationship between us and the Purchaser are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

General Terms and Conditions for Deliveries and Services of Arnold Potthoff GmbH & Co. KG (as of January 2025)