General Terms and Conditions of Sale, Delivery and Payment

General provisions

1. Validity
   1. All offers, sales, deliveries and services of VIGOR GmbH (hereinafter: "VIGOR") with entrepreneurs, legal entities under public law and special funds under public law for deliveries and other services, including contracts for work and services, contracts for the delivery of fungible and non-fungible items to be manufactured or produced, are based exclusively on these General Terms and Conditions of Sale, Delivery and Payment (hereinafter: "Terms and Conditions"). Conflicting terms and conditions of the Purchaser pursuant to Section 305 ff. of the German Civil Code ("BGB - Bürgerliches Gesetzbuch"), in particular purchasing conditions of the contracting partner (hereinafter: "Purchaser") do not apply on any account, nor also if VIGOR does not contradict them after receipt.
   2. These Terms and Conditions are an integral part of all contracts concluded with VIGOR’s contractual partners for its deliveries and services. Agreement is given to the Terms and Conditions when the order is placed or the delivery accepted. Unless otherwise agreed, these Terms and Conditions in the version valid at the time of the Purchaser’s order or in any case in the version they last received in text form shall also apply as a framework agreement for similar future contracts without VIGOR having to refer to them again in each individual case.
   3. Modifications and/or supplements to these Terms and Conditions are only valid if written agreement there to has been given. The written form pursuant to these Terms and Conditions also comprises the text form
   4. To the extent that nothing else is agreed in these Terms and Conditions, the determining factor for the interpretation of the various terms of delivery is the INCOTERMS® 2020.
   5. The personal data of the Purchaser and their employees will be stored and processed by VIGOR in line with the stipulations of the DSGVO (General Data Protection regulation).
2. Offers and Conclusion of Contracts
   1. VIGOR offers are subject to confirmation and without obligation. Orders can be accepted by VIGOR within thirty (14) days. The Purchaser is thus bound to its request for at least this period. An order is deemed as accepted when VIGOR has confirmed it in writing to the Purchaser. The delivery and invoice are both deemed as confirmation of an order.
   2. VIGOR reserves the right to ownership and the copyright to the documentation pertaining to the offer (illustrations, drawings, descriptions and the like); third parties may only obtain access to the documentation if it is intended to be circulated. Otherwise, it should be returned to VIGOR upon request.
3. Prices
   1. Unless otherwise agreed in individual cases, VIGOR’s current prices at the time of conclusion of the contract shall apply, namely net cash ex warehouse, plus statutory VAT, plus freight ex works or warehouse and do not include outer packaging, postage and value protection.
   2. If the Purchaser’s value of consignment exceeds a net value of EURO 1,000, i.e. excluding VAT, then delivery shall be made with carriage paid to the Purchaser’s address within Germany and without charge for standard packaging. This applies exclusively to deliveries to the Purchaser's address. For different delivery addresses, the prices listed under Point III shall apply. 1.
4. Payment Conditions
   1. Unless otherwise agreed in writing or indicated on the invoice, the invoices are due for full payment in euros immediately irrespective of any delays in delivery for which VIGOR is responsible. An agreed discount always refers only to the invoice value excluding freight. Unless otherwise agreed, discount periods begin from the invoice date.
   2. The receipt by VIGOR shall determine the timeliness of payment.
   3. As long as purchase price receivables based on older invoices which are due for payment are still unsettled, it is not permitted to make a cash discount deduction in any case.
   4. If special agreements are the basis, VIGOR shall only accept as fulfillment cheques and bills of exchange which are re-discountable with the Bundesbank (German Central Bank).
   5. Bills of exchange or cheques shall be credited subject to receipt with the value of the date – and only apply as payment on the day – when VIGOR can ultimately dispose over the proceeds. The Purchaser shall bear all costs and expenses which result from this.
   6. If the Purchaser falls into payment arrears, the Purchaser shall pay interest on the respective claim at a rate of 9 percentage points above the basic interest rate pursuant to § 247 BGB. The right to assert further claims due to the delay remains unaffected.
   7. If it becomes discernible after conclusion of the contract that the payment claim by VIGOR is jeopardised by inadequate performance on the part of the Purchaser or if other circumstances occur, which are indicative of a significant deterioration in their performance, VIGOR can refuse agreed advance performances as well as exercise the rights from Section 321 BGB. This also applies insofar as VIGOR's duty of performance is not yet due. In such cases, VIGOR can furthermore call in claims from the current business relationship with the Purchaser. Inadequate performance on the part of the Purchaser is also deemed to be the case if the Purchaser is at least three weeks in payment arrears to VIGOR by a considerable amount (from 10 % of the claims due) , furthermore a considerable downgrading of the limit available to them for VIGOR’s goods credit insurance.
   8. The retention of payments or offsetting with the Purchaser’s counterclaims is only permitted if the counterclaims are undisputed or have become legally binding, or they would entitle the Purchaser to refuse their performance pursuant to Section 320 BGB.
   9. Claims against VIGOR are only assignable with VIGOR’s written consent.
5. Securities / retention of title
   1. The ownership of the delivered goods ("reserved property" in this section A. V.) is transferred under the condition precedent of full payment of the purchase price. Furthermore, VIGOR shall retain ownership of all delivered goods until the fulfillment of all claims by VIGOR, in particular also the respective outstanding balance claims, which are due to VIGOR as part of the business relationship (balance reservation). This also applies if the payments are made for specifically designated receivables. The balance reservation shall expire finally with the settlement of all claims still outstanding and covered by this balance reservation at the time of payment. In case of prepayment transactions or cash transactions pursuant to Section 142 Insolvency Ordinance, only the simple retention of title according to A. V. 1. clause 1 shall apply, the extension and prolongation forms of the retention of title shall not then apply.
   2. The Purchaser may only sell reserved property during the course of normal business and as long as they are not behind with the payment of outstanding receivables towards VIGOR. The Purchaser herewith assigns in advance to VIGOR all receivables against third parties arising from such sales in the amount of the respective invoice value for the resold reserved property, including the statutory VAT. VIGOR shall accept this assignment. The same applies for other claims, which occur at the point of the reserved property or otherwise result in respect to the reserved property, for instance insurance claims or claims from illicit action upon loss or destruction.
   3. If the Purchaser sells the reserved property together with other objects not delivered by VIGOR, the assignment of the receivables from the sale shall apply only in the amount of the invoiced value of the reserved property, whose value is stated in the VIGOR invoices. In case of processing, combination and mixing the reserved property with other goods by the Purchaser, VIGOR is entitled to co-ownership of this in the proportion of the invoice value of the reserved property to the invoice value of the other goods used. If VIGOR’s ownership is terminated by combination or mixing, the Purchaser shall already assign to VIGOR the ownership rights to which they are entitled to the new inventory or the item in the scope of the invoice value of the reserved property and store it free of charge for VIGOR. The co-ownership rights apply as reserved property.
   4. The Purchaser is entitled to collect the receivables from the sale to third parties.
   5. VIGOR is entitled to revoke the authorisation to collect receivables given in A. V. clause 4 if the Purchaser defaults on their payments, as well as in the event of a significant decline in the Purchaser’s financial situation pursuant to A. IV. 7. Even without such a revocation, the authorisation to collect is also terminated with the placement of a request for insolvency proceedings or with the assignment of security measures in an insolvency proceeding. Upon request, the Purchaser shall inform VIGOR of the assigned receivables and their debtors, and provide the documentation necessary for the collection of the receivables. Upon special request by VIGOR, the Purchaser shall inform the affected third-party debtors of the assignments made.
   6. As far as the Purchaser becomes entitled to claims against insurance companies or other third parties due to the reserved property deteriorating or becoming damaged, lost or destroyed or for other reasons, these claims shall also be assigned, instead of the sales proceeds, to VIGOR in advance and to the same extent together with all ancillary rights.
   7. Rights arising from the reservation of title and from all the special forms stipulated in these conditions also apply until the title is transferred in full to contingent liabilities which VIGOR has accepted in the Purchaser’s interest.
   8. The Purchaser may not make or allow dispositions regarding the reserved property that do not correspond to the above conditions.
   9. The Purchaser must inform VIGOR in writing and without undue delay of seizures and other risks to VIGOR’s rights emanating from third parties, and give information necessary for legal action to be brought by a third party claiming title to the seized property in accordance with Section 771 of the Code of Civil Procedure (Zivilprozessordnung – ZPO). The Purchaser shall be liable if VIGOR suffers a loss because a third party cannot pay the legal and out-of-court costs of legal action, which it must reimburse to VIGOR pursuant to Section 771 of the ZPO.
   10. VIGOR is entitled, at the Purchaser’s expense, to insure the reserved property against fire, water and theft unless the Purchaser can demonstrate that it has taken out such insurance itself.
   11. If the value of the security, including offset possibilities, exceeds the secured receivables by more than 20 % for an extended period of time, VIGOR is then obliged upon the Purchaser’s request to release securities of VIGOR’s choice.
6. Return of Goods
   1. Insofar as VIGOR is not obliged to take back goods, VIGOR shall only take back goods insofar as the goods are current, in their original packaging and re-sellable and insofar as VIGOR has consented to the take-back in writing beforehand. These must be returned free of charge.
   2. A credit note for goods returned pursuant to A. VI. 1. is made with 80 % of the calculated price. Costs for any reprocessing or new packaging shall be deducted additionally. The credit note can only be credited with new deliveries of goods. As a general principle, returns of insulated tools cannot be accepted for safety reasons.

Deliveries, warranty, liability

1. Delivery periods, delivery dates
   1. Periods and deadlines set by VIGOR for deliveries and performances always apply only approximately, unless a fixed period or a fixed deadline is expressly assured or agreed.
   2. The delivery periods commence with the receipt of the order confirmation, but not before all the details of the order have been completely clarified and any necessary national and international official certificates have been obtained. The delivery periods and dates refer to the time of shipment, i.e. dispatch ex works or warehouse. These are also deemed to have been observed with the notification that the goods are ready to be dispatched even if, through no fault of VIGOR’s, they cannot be dispatched on time.
   3. Without influencing VIGOR’s rights arising from the Purchaser’s default, the agreed delivery period is extended by the time during which the Purchaser defaults on its obligations arising from this or other business plus an appropriate start-up period.
   4. Partial deliveries are permitted as far as the Purchaser can be reasonably expected to accept them. Each partial delivery is considered an independent business transaction.
   5. VIGOR is entitled to withhold outstanding deliveries if the Purchaser does not fulfil their payment obligations or if there is reasonable concern that they cannot fulfil such an obligation (right of retention). VIGOR reserves the right in any case to make deliveries in return for advance payment or cash on delivery.
   6. VIGOR’s delivery obligation is always subject to the reservation of correct, timely and contractual self-delivery, unless the incorrect or delayed self-delivery is the fault of VIGOR. If VIGOR is in delay with a delivery or other performance, the Purchaser can demand replacement of the default damage besides the performance; but in case of minor negligence limited to maximum 10 % of the agreed price for the delayed delivery or performance. The right of the Purchaser to damage compensation in lieu of service pursuant to B. VII. remains unaffected.
2. Special Conditions for Goods on Recall
   1. For business with continuous deliveries, VIGOR must receive release orders and type categories for roughly the same amount per month. If the release orders or type categories are not given on time, VIGOR is entitled, after the deadline has expired without any result, to categorise and deliver the goods itself, or to withdraw from the outstanding part of the transaction and demand compensation instead of payment.
3. Force Majeure and Other Delivery Conditions
   1. Force majeure events, such as strike, lockout, mobilization, war, blockade, pandemic or epidemic, export and import bans, raw material and fuel shortages, fire and other circumstances which are not the fault of VIGOR and which significantly impede the delivery or performance by VIGOR, shall entitle VIGOR to postpone the delivery for the duration of the obstacle and an appropriate start-up time. This applies irrespective of whether the above-mentioned circumstances occur at VIGOR, the preliminary supplier or one of the subcontractors.
   2. The Purchaser can demand an explanation from VIGOR as to whether delivery will take place within an appropriate period or whether a rescission from the contract should be considered. If VIGOR does not make a declaration within an appropriate deadline, the Purchaser can itself rescind from the as yet unfulfilled part of the delivery.
   3. The declaration made by the preliminary supplier or the sub-contractor to VIGOR regarding circumstances which have occurred at their premises pursuant to B. III. 1. are deemed as sufficient proof that VIGOR is not responsible for the hindrance of the delivery.
4. Dispatch and Passing of Risk
   1. The forwarding agent or freight carrier shall be determined by VIGOR. In the absence of any special agreement, the choice of route and means of transport is entrusted to VIGOR, excluding any liability.
   2. Release orders must be given without undue delay for goods which have been notified as ready for dispatch on the agreed date. VIGOR is otherwise entitled to store them as it sees fit at the Purchaser’s expense and risk, and invoice them as delivered ex works or warehouse. The means of transport must be unloaded immediately if the delivery is made with carriage paid. The costs for any periods of delay shall always be borne by the Purchaser.
   3. Unless otherwise agreed, delivery shall be "ex works", which shall also be the place of fulfilment for the delivery and any subsequent performance. The risk shall in any case – including a confiscation – pass to the Purchaser when the goods are handed over to the forwarding agent or freight carrier or at the latest when the goods leave the works or warehouse – e.g. even if the delivery is made with carriage paid.
   4. Premature deliveries which the Purchaser can be reasonably expected to accept, and excess or short deliveries, which are customary in the trade, are permitted.
   5. The requested amount may be fallen short of or exceeded by up to 10 % for custom-made products. Also considered as custom-made products are mass-produced articles which the Purchaser explicitly wishes to have a special designation. The Purchaser is not entitled to a right of withdrawal. The goods cannot be returned to VIGOR.
5. Defects and warranty
   1. The internal and external properties of the delivered goods are primarily determined by the agreed quality. All product descriptions in brochures, catalogues, advertisements or in the documents belonging to the offer shall be deemed to be an agreement on the quality of the goods, insofar as they have become part of the contract by express reference. Common practice deviations, or modifications which are made due to legal regulations or as technical improvements, are permitted insofar as they do not adversely affect the contractually intended use. If the quality has not been agreed, the goods shall be free from material defects if they are suitable for the use stipulated in the contract.
   2. In the case of goods with digital elements or other digital content, VIGOR shall only be obliged to provide and, if applicable, update the digital content insofar as this expressly results from a quality agreement in accordance with B. V. 1. Otherwise, goods with digital elements in accordance with Section 327a Para. 3 BGB and digital content and digital services in accordance with Sections 327 and 327a BGB ("digital products") shall not be updated by VIGOR. If an update has been contractually agreed, the period in which VIGOR shall provide updates for digital products or goods with digital elements shall in any case end at the latest upon expiry of the warranty claims in accordance with clause B. VII. 5.
   3. Insofar as the goods have the agreed quality in accordance with clause B. V. 1 or are suitable for the use stipulated in the contract, the Purchaser cannot invoke the claim that the goods are not suitable for normal use or are not of a quality that is customary for goods of this type and that the Purchaser expected. In this respect, VIGOR’s liability is excluded in accordance with this Para. B. V. and Para. B. VII. of these Terms and Conditions.
   4. The Purchaser shall examine the received goods immediately after delivery. Claims for defects only arise if defects are complained about immediately, but no later than in 7 days in text form; concealed defects must be notified in text form immediately after their discovery. The Purchaser shall immediately notify the responsible shipping agent, transport/freight company or post office, as well as VIGOR of any transport damage and obvious defects.
   5. If an acceptance of the goods or an initial sample inspection has been agreed, the buyer is obliged to immediate acceptance or initial sample inspection. An initial sample inspection does not exonerate the buyer from an incoming goods inspection of the series parts. Complaint about defects, which the Purchaser could have discerned upon immediate initial sample inspection, is excluded from the delivery of series parts.
   6. VIGOR shall be given the opportunity to determine the defects receiving complaint. Goods that have received complaint shall be sent back to VIGOR immediately on demand; VIGOR shall assume the transport costs if the defect complaint is justified. If the Purchaser does not fulfil these obligations or makes changes to goods that have already received complaint without the consent of VIGOR, they shall lose any material defect claims.
   7. If the delivered goods exhibit a material defect, VIGOR is first entitled to reworking or replacement delivery with a reasonable period as chosen by VIGOR. VIGOR is entitled to make supplementary performance dependent on the Purchaser paying the due purchase price. The Purchaser is, however, entitled to withhold such part of the purchase price as is reasonable in proportion to the defect.
   8. VIGOR has equally little responsibility for defects, which arise due to unsuitable or improper use, defective assembly not caused by VIGOR or commissioning by the Purchaser or third parties, normal wear, erroneous or negligent handling, as for the consequences of improper changes or repair work performed by the Purchaser or third parties without VIGOR’s consent.
   9. Claims of the Purchaser for reimbursement of expenses according to Section 445a Para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c S. 2, 327 Para. 5, 327u BGB). Otherwise, the Purchaser shall only have statutory rights of recourse against VIGOR to the extent that the Purchaser has not come to any understanding with their customer that exceeds the statutory claims due to liability for defects.
   10. In any case, VIGOR shall only assume expenses in connection with subsequent fulfilment insofar as they are not disproportionate in the individual case, in particular in relation to the purchase price of the goods. Disproportionality shall be deemed to exist at the latest if the expenses claimed, in particular for removal and installation costs, exceed 150% of the invoiced value of the goods or 200% of the reduced value of the goods due to defects. Further claims by the Purchaser due to material defects, which are asserted against VIGOR and its vicarious agents, are excluded subject to the regulation in B.VI. and B. VII. of these Terms and Conditions.
   11. If the goods infringe an intellectual property right or copyright of a third party, VIGOR shall, at its discretion and at VIGOR’s expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the goods continue to fulfil the contractually agreed functions, or procure the right of use for the Purchaser by concluding a licence agreement with the third party. If VIGOR fails to do so within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages from the Purchaser are subject to the limitations of B. VII Terms and Conditions.
   12. If third parties make claims due to property rights’ violations, the Purchaser shall enable VIGOR to participate at its own expense in the legal defence against such claims of third parties, in particular by what is referred to as a third-party intervention in the sense of civil procedure. The Purchaser shall support VIGOR in the preparation and execution of the legal defence or settlement negotiation to a reasonable extent. VIGOR shall reimburse the Purchaser all necessary expenses in conjunction with the legal defence against this utilisation, whereby legal fees are reimbursed on the basis of the Law on the Remuneration of Lawyers ("RVG").
   13. A precondition for the claims of the Purchaser against VIGOR in accordance with B. V. 12. is that
   14. a) the Purchaser shall inform VIGOR immediately in writing if claims are asserted against the Purchaser in relation to the supplied goods on account of the violation of property rights of third parties,
   15. b) the Purchaser grants VIGOR control of the legal defence and acts in the context of the legal defence and/or in settlement negotiations only and always in agreement with VIGOR and
   16. c) the alleged infringement is exclusively attributable to the goods supplied by VIGOR without connection or use with other products.
6. Guarantee
   1. Irrespective of the material defect claims to which the Purchaser might be entitled according to B. V., VIGOR grants a full guarantee on all tools in case of material and production faults. All adapters are excluded from the full guarantee. The full guarantee on sockets for impact operation is limited to material defects and/or faulty workmanship. The guarantee does not cover the tools or consumables for normal wear and/or tear damage. The full guarantee will not be valid for tools which cannot be used any more due to their old age or due to abuse or improper use. The relevant operating instructions and safety instructions for the VIGOR tools shall be considered in this context. The general safety instructions as well as the data in the VIGOR tool catalogue shall also be considered. An improper use of tools occurs especially in case:
      • the normal or specified loading capacity of the tool is exceeded (for instance when using a diagonal cutter on a wire that is too hard or, in the case of chisels, centre punches or drift punches that are used on steel that is too hard, or for work that is too difficult).
      • tools that already exhibit damage or defects continue to be used.
      • screws and nuts are used with the wrong-sized nut-driver.
      • modified tools are used.
      • nut-drivers designated for manual operation are used on impact wrenches.
      • tools (e.g. use of screwdrivers as chisels or pry bars etc.) are improperly used.
   2. In order to make use of the right of guarantee, the Purchaser shall send the tool carriage free via specialised retailers to VIGOR in the event of a material or manufacturing defect. VIGOR shall check the tool. If a material or manufacturing defect is detected, VIGOR shall replace the goods or repair the goods free of charge.
7. Liability
   1. On account of violation of contractual and non-contractual obligations, in particular on account of impossibility, delay, fault upon contract initiation and unauthorised handling, VIGOR shall only be liable on cases of wilful intent and gross negligence. In case of gross negligence, VIGOR’s liability is limited to the contract-typical damage foreseeable upon conclusion of contract.
   2. The limitations of liability from B. VII. 1. do not apply in case of culpable violation of essential contractual obligations, insofar as the attainment of the contractual purpose is jeopardised, in case of culpably caused damage to life, body and health and also then if and to the extent that VIGOR has assumed the guarantee for the nature of the sold item, as well as in cases of mandatory liability according to the Product Liability Act. Essential contractual obligations are those, which actually enable the proper execution of the contract and upon whose compliance the Purchaser may regularly rely. A reversal of the burden of proof to the Purchaser’s disadvantage is not associated with the above regulations.
   3. Insofar as the liability of VIGOR is excluded or limited, this also applies for the personal liability of the employees, workers, personnel, legal representatives and vicarious agents of VIGOR.
   4. Insofar as the Purchaser is legally obliged, on account of an error caused by VIGOR in the goods produced and supplied by VIGOR, to implement a recall action and insofar as VIGOR itself would therefore be liable in the external relationship, VIGOR shall bear the costs associated with the recall action only to the extent that the measures and costs are reasonable and necessary, no milder equally effective means of risk aversion are available and insofar as these were coordinated with VIGOR before any costs are incurred. VIGOR’s objection to the contributory negligence remains unaffected.
   5. Unless otherwise agreed, contractual claims, which arise from material defects and defects of title including claim for damages from the Purchaser against VIGOR on the occasion of and in conjunction with the delivery of the goods, shall come under the statute of limitations one year after delivery of the goods. If an acceptance has been agreed, the statute of limitations begins with the acceptance. This does not apply, insofar as Sections 438 Para. 1 No. 2, 478, 479 or Section 634 a Para. 1 No. 2 of the BGB stipulates longer periods as well as in cases of injury to life, body or health, in case of a deliberate or grossly negligent breach of duty by us or in case of fraudulent concealment of a defect or liability in accordance with the product liability law. The limitation period shall not recommence in cases of defective supplementary performance. The statutory regulations concerning the burden of proof remain unaffected.
8. Export control
   1. Upon conclusion of the contract, at the latest upon acceptance of the delivery, the Purchaser assures that they will not conduct any business with the goods delivered by VIGOR that violates applicable statutory export regulations and/or applicable EU sanctions, and in particular that they will only carry out further deliveries, shipments and exports of the delivered goods in compliance with applicable statutory export control regulations.
   2. The Purchaser undertakes to ensure that no persons, organisations or entities are involved in or supported by the execution of the contract that are listed in the applicable anti-terrorism and sanctions lists of the European Union and the United Nations. This also applies with regard to persons, organisations or entities listed in the anti-terror and sanctions lists of other governments (in particular the US Denied Persons List, US Entity List, US Specially Designated Nationals List, US Debarred List).

Final provisions

1. The place of fulfillment and exclusive court of venue for all disputes directly or indirectly resulting from this contractual relationship is Remscheid. However, we can also institute proceedings against the Purchaser at their court of jurisdiction.
2. The legal relationship between VIGOR and the Purchaser is exclusively subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated April 11, 1980.
3. If individual regulations of these terms and conditions are or become ineffective, either in full or in part, this shall not affect the effectiveness of the remaining part or the remaining regulations.

Remscheid, June 2024