I. VALIDITY

1. The following General Terms and Conditions shall form part of the contract concluded between ILKAZELL Isoliertechnik GmbH Zwickau (hereinafter referred to as the Supplier) and its contractual partner (hereinafter referred to as the Purchaser), regardless of whether it is a purchase contract, a contract for work and materials, a contract for work or a service contract. All deliveries, services and offers of the Supplier are made exclusively on the basis of these General Terms and Conditions. They also apply to all future deliveries, services and offers of the Supplier to the Purchaser, even if their validity is not separately agreed again.

2. Purchasers within the scope of these General Terms and Conditions are exclusively entrepreneurs, legal entities under public law and special funds under public law. An entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, is acting in the exercise of their commercial or independent professional activity (§ 14 BGB). The General Terms and Conditions do not apply if the customer is a consumer within the meaning of § 13 BGB.

3. The general terms and conditions of the purchaser or third parties shall not apply, even if the supplier does not separately object to their validity in individual cases. Even if the supplier refers to a letter that contains or refers to the general terms and conditions of the purchaser or a third party, this does not constitute agreement with the validity of those general terms and conditions.

 

II. OFFER AND CONCLUSION OF CONTRACT

1. All offers made by the supplier are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. The supplier may accept orders or contracts within fourteen days of receipt.

2. The legal relationship between the supplier and the customer is governed solely by the contract concluded in writing, including these General Terms and Conditions. The contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal commitments made by the supplier prior to the conclusion of this contract are not legally binding, and verbal agreements between the contracting parties are replaced by the contract in written form, unless it is expressly stated in each case that they remain binding.

3. Additions and amendments to the agreements made, including these General Terms and Conditions, must be made in writing to be effective.

4. If, after conclusion of the contract, the customer wishes to make changes or additions to the delivery or service owed by the supplier, these must be agreed in writing in the event of mutual agreement, including any resulting changes to the price, delivery time or performance time.

5. Information provided by the supplier regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, (colour) tolerances and technical data) as well as representations thereof by the supplier (e.g. drawings and illustrations) are only approximate unless exact conformity is required for the contractually intended purpose. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations due to legal regulations or technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.

6. The supplier reserves the ownership or copyright to all offers and cost estimates submitted by him, as well as to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items available to third parties, disclose them, use them himself or through third parties, or reproduce them without the express consent of the supplier. At the supplier's request, he must return these items in full to the supplier and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

  

III. PERFORMANCE AND PERFORMANCE TIME

1. Deadlines and dates for deliveries or services promised by the supplier are always non-binding, unless a binding deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery deadlines and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. If assembly has been agreed, the performance time refers to the start of assembly.

2. The supplier shall only commence the provision of its deliveries or services after receipt of an agreed down payment. In this respect, the customer is obliged to make advance payment.

3. The supplier is entitled to have the deliveries or services owed by it performed in whole or in part by affiliated companies or other third parties.

4. Without prejudice to its rights arising from the customer's default, the supplier may demand that the customer extend the delivery and service periods or postpone the delivery and service dates by the period during which the customer fails to fulfil its contractual obligations towards the supplier.

5. The supplier shall not be liable for the impossibility of delivery or performance or for delays in delivery or performance if these are due to force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official approvals, in particular export licences from the Federal Office of Economics and Export Control, official measures or the failure of upstream suppliers to deliver, or to deliver correctly or on time) for which the supplier is not responsible. If such events make delivery or performance significantly more difficult or impossible for the supplier and the hindrance is not only of a temporary nature, the supplier shall be entitled to withdraw from the contract. In the event of obstacles of a temporary nature, the delivery or performance deadlines shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, the customer cannot reasonably be expected to accept the delivery or service, it may withdraw from the contract by immediately notifying the supplier in writing.

6. The supplier is only entitled to make partial deliveries or provide partial services if the partial delivery or partial service is usable for the customer within the scope of the contractual purpose, the delivery or service of the remaining ordered goods is ensured and the customer does not incur any significant additional expenses or costs as a result (unless the supplier agrees to bear these costs).

7. The supplier is entitled to make outstanding deliveries or provide outstanding services only against advance payment or security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the customer and which jeopardise the payment of the supplier's outstanding claims by the customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

8. The supplier shall notify the purchaser in writing of its readiness to deliver or perform.

9. Claims for damages in lieu of performance are excluded in cases of slight negligence on the part of the supplier.

10. If, while in default, the supplier is prevented from delivering by chance, it shall be liable in accordance with the above agreed limitations of liability. The supplier shall not be liable if the damage would have occurred even if delivery had been made on time.

11. The limitations and exclusions of liability in this Section III shall not apply to damage resulting from gross negligence or wilful breach of duty on the part of the supplier, its legal representatives or vicarious agents, or in the event of injury to life, limb or health.

 

IV. PLACE OF PERFORMANCE, SHIPPING, PACKAGING, ACCEPTANCE, TRANSFER OF RISK

1. Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship is the ILKAZELL factory in Zwickau, GERMANY. Deliveries by the supplier shall be made ex works ILKAZELL (EXW Zwickau, in accordance with Incoterms 2020). If the supplier is also responsible for assembly, the place of performance shall be the location where assembly is to take place.

2. In the event of any agreed shipment, the mode of shipment and packaging shall be at the Supplier's discretion and the goods shall only be insured by the Supplier against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Purchaser and at the Purchaser's expense.

3. The customer undertakes to handle and dispose of the packaging properly in accordance with the applicable statutory provisions at its own expense and risk. The supplier is not obliged to take back the packaging. In this respect, the customer shall indemnify the supplier against the statutory obligations for disposal (e.g. under the Packaging Act) and all expenses incurred in this connection.

4. If no acceptance is to take place, the risk shall pass to the customer at the latest upon handover of a delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries or partial services are made or if the supplier has assumed other services (e.g. shipping or assembly). If dispatch or handover is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day on which a delivery item is ready for dispatch and the notification of readiness for dispatch in accordance with Section III. 8. has been received by the customer.

5. If acceptance is to take place, the risk shall pass to the customer at the same time. The delivery or service shall in any case be deemed to have been accepted if the delivery or service and, if the supplier is also responsible for assembly, the assembly has been completed, the supplier has notified the customer of this with reference to the deemed acceptance pursuant to this paragraph and has requested the customer to accept the delivery or service, ten working days (Mon-Fri) have elapsed since the delivery or assembly, or the customer has started using the delivery item or service (e.g. has put the delivered system into operation) and, in this case, seven working days have elapsed since delivery or assembly, and the customer has failed to accept delivery within this period for a reason other than a defect reported to the supplier that makes it impossible or significantly impairs the use of the delivery item or service.

6. If the customer defaults on acceptance, fails to cooperate or delays the supplier's delivery or service for other reasons for which the customer is responsible, the supplier shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this, the supplier shall charge a flat-rate compensation of 0.1% of the net invoice amount per calendar week, beginning with the notification of readiness for dispatch or notification of deemed acceptance. The proof of higher damages and the statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that the supplier has incurred no damage at all or only significantly less damage than the above lump sum.

  

V. PRICES AND PAYMENT TERMS

1. Unless otherwise agreed, prices are quoted in EUR ex works (ex works Zwickau in accordance with Incoterms 2020), plus assembly, packaging and the statutory value added tax applicable at the time of payment, and in the case of export deliveries, plus customs duties, fees and other public charges.

2. If there is a difference of more than four months between the delivery or service time notified by the supplier or agreed between the contracting parties and the actual delivery or service time, and if the customer is responsible for this delay, the supplier shall be entitled, irrespective of Clause IV. 6. to increase the prices accordingly if cost increases (e.g. material, labour and energy costs as well as statutory provisions) occur after conclusion of the contract. The increased costs shall be proven to the customer upon request. If the increase exceeds 10% of the originally agreed price, the customer may withdraw from the contract.

3. Invoice amounts are due and payable within 30 days of receipt of the invoice by the customer, at the earliest after delivery or acceptance. Unless otherwise agreed, advance payments shall be made immediately after conclusion of the contract.

4. Upon expiry of the above payment period, the customer shall be in default. During the period of default, interest shall be charged on the invoice amount at the applicable statutory default interest rate. The supplier reserves the right to assert further claims for damages caused by default. The supplier's claim to commercial interest on arrears (§ 353 HGB) against merchants remains unaffected.

5. Payments may be made by irrevocable credit transfer to an account of the supplier.

6. The customer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery or service, the customer's counterclaims shall remain unaffected.

  

VI. TITLE RETENTION  

1. The retention of title agreed below serves to secure the claims to which the supplier is entitled under the contract. The retention of title also serves to secure all existing and future claims of the supplier against the customer arising from the delivery relationship between the contracting parties (including balance claims from a current account relationship limited to this delivery relationship).

2. The goods delivered by the supplier to the customer remain the property of the supplier until all secured claims have been paid in full. The goods and the goods covered by the retention of title that replace them in accordance with this clause are hereinafter referred to as reserved goods.

3. The customer shall store the goods subject to retention of title free of charge for the supplier.

4. The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the occurrence of an event of realisation within the meaning of Clause VI.9. Pledging and transfer by way of security are not permitted.

5. If the goods subject to retention of title are processed by the customer, it is agreed that the processing shall be carried out in the name and on behalf of the supplier as manufacturer and that the supplier shall immediately acquire ownership or – if the processing is carried out using materials belonging to several owners or if the value of the processed item is higher than the value of the goods subject to retention of title – the co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership occurs on the part of the supplier, the customer hereby transfers its future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to the supplier as security. If the goods subject to retention of title are combined with other items to form a single item or are inseparably mixed and one of the other items is to be regarded as the main item, the supplier shall, insofar as the main item belongs to him, transfer to the customer proportional co-ownership of the single item in the ratio specified in sentence 1.

6. In the event of resale of the goods subject to retention of title, the customer hereby assigns to the supplier, by way of security, the resulting claim against the purchaser – in the case of co-ownership of the goods subject to retention of title by the supplier, proportionately in accordance with the co-ownership share. The same applies to other claims that replace the goods subject to retention of title or otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. The supplier revocably authorises the customer to collect the claims assigned to the supplier in its own name. The supplier may only revoke this authorisation to collect in the event of realisation.

7. If third parties access the goods subject to retention of title, in particular through seizure, the customer shall immediately notify them of the supplier's ownership and inform the supplier thereof in order to enable the supplier to enforce its property rights. If the third party is unable to reimburse the supplier for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to the supplier for these costs.

8. Upon request, the supplier shall release the goods subject to retention of title and the items or claims replacing them at its discretion, provided that their value exceeds the amount of the secured claims by more than 15%.

9. If the supplier withdraws from the contract due to the customer's breach of contract – in particular default in payment – (event of realisation), he shall be entitled to demand the return of the goods subject to retention of title.

 

VII. CONFIDENTIALITY

1. The contracting parties are obliged to treat all non-public commercial and technical details that become known to them through their business relations as trade secrets.

2. Drawings, illustrations, calculations, descriptions, documentation, reports, charts, diagrams, images, films, data, data carriers, models, matrices, templates, samples, tools and other production resources and confidential information may not be disclosed to unauthorised third parties or otherwise made accessible. The reproduction of such items is only permitted within the scope of operational requirements and copyright provisions.

3. The customer shall, where applicable, impose a corresponding obligation on its customers.

4. The contracting parties may only advertise their business relationship with prior consent in text form.

5. The provisions of any separate confidentiality agreement between the contracting parties shall remain unaffected by the above provisions.

 

VIII. LIABILITY FOR DEFECTS

1. In the case of the delivery of an item, including a movable item to be manufactured or produced, claims for material defects shall become time-barred one year after delivery and, in the case of the provision of work services, one year after acceptance thereof. Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.

2. The shortening of the limitation period in Clause VIII.1, sentence 1, and the exclusion of warranty for material defects in VIII.1, sentence 2, shall not apply to damage resulting from gross negligence or intentional breach of duty on the part of the seller, its legal representatives or its vicarious agents, or in the event of injury to life, limb or health.

3. The goods delivered by the supplier and the work performed by him shall be carefully inspected by the customer or a third party designated by him immediately after delivery or performance.

4. The delivered goods and work performed shall be deemed to have been approved if the supplier has not received a written notice of defects in respect of obvious defects or other defects that were apparent upon immediate and careful inspection within seven working days of delivery of the goods or performance of the work, or otherwise within seven working days of the discovery of the defect or any earlier point in time at which the defect was recognisable to the customer during normal use of the goods or performance of the work without closer inspection.

5. The customer bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notification of defects.

6. Section 377 of the German Commercial Code (HGB) remains unaffected.

7. Subsequent performance shall be carried out at the supplier's discretion at the ILKAZELL Zwickau, GER factory or at a specialist workshop commissioned by the supplier. At the supplier's request, the rejected delivery item shall be returned to the supplier carriage paid. In the event of a justified complaint, the supplier shall reimburse the costs of the cheapest shipping method; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

8. The supplier shall initially remedy defects in the delivery item at its discretion by either rectifying the defect or delivering a defect-free item.

9. In the event of defects in components from other manufacturers which the supplier cannot remedy for licensing or factual reasons, the supplier shall, at its discretion, assert its warranty claims against the manufacturers and upstream suppliers on behalf of the customer or assign them to the customer. Warranty claims against the supplier for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the above-mentioned claims against the manufacturer and upstream supplier has been unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the limitation period for the purchaser's warranty claims against the supplier shall be suspended.

10. If the customer receives defective operating or assembly instructions, the supplier shall only be obliged to deliver defect-free operating or assembly instructions, and then only if the defect in the operating or assembly instructions prevents the proper operation of the delivery item.

11. Parts replaced in the course of subsequent performance shall become the property of the supplier.

12. The warranty shall lapse if the customer modifies the delivery item or has it modified by third parties without the supplier's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

13. If the supplier is liable for damage caused by slight negligence in accordance with statutory provisions, the supplier's liability shall be limited:
a) Liability shall only apply in the event of a breach of essential contractual obligations, such as those which the contract specifically imposes on the customer in accordance with its content and purpose, or the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer regularly relies and may rely. This liability shall be limited to the typical damage foreseeable at the time of conclusion of the contract. 
b) The personal liability of the supplier's legal representatives, vicarious agents and employees for damage caused by them through slight negligence is excluded.
c) Clause VIII.2 applies accordingly to the aforementioned limitation of liability and the aforementioned exclusion of liability.

14. Irrespective of any fault on the part of the supplier, any liability of the supplier for fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk and under the Product Liability Act shall remain unaffected.

  

IX. LIABILITY FOR OTHER DAMAGES

1. Other claims of the customer that are not regulated in Section VIII shall become time-barred after the regular limitation period.

2. Liability for delayed delivery is conclusively regulated in Section III.

3. For other claims for damages against the supplier, the provisions in Sections VIII.13 and VIII.14 shall apply accordingly.

 

X. APPLICABLE LAW/PLACE OF JURISDICTION

1. The contracting parties agree that German law shall apply to the contract concluded and all related relationships, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). German is agreed as the contract language.

2. If the customer is a merchant, the registered office of the supplier shall be the exclusive place of jurisdiction for all present and future claims arising from the business relationship. The same place of jurisdiction shall apply if the customer is a merchant and does not have a general place of jurisdiction in the Federal Republic of Germany, moves his place of residence or habitual abode outside this country after conclusion of the contract, or his place of residence or habitual abode is unknown at the time the action is brought. However, the supplier shall also be entitled, at its discretion, to bring an action before the courts having jurisdiction under the general statutory provisions.

  

XI. SEVERABILITY CLAUSE

Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole.

End of the General Terms and Conditions

ILKAZELL Isoliertechnik GmbH Zwickau 04.04.2025