General Terms and Conditions of Sales
1. GENERAL PROVISIONS, APPLICABILITY
1.1 Our Terms and Conditions of Sale (the “Terms and Conditions”) have exclusive applicability, and any terms and conditions of the Customer in conflict with or different from our Terms and Conditions are inapplicable unless we have expressly consented to their applicability in writing. Our Terms and Conditions are applicable even if we make deliveries to the Customer without any reservation of rights, knowing the Customer's terms and conditions which are in conflict with or different from our Terms and Conditions.
1.2 Individual arrangements made in a particular case (inclusive collateral agreements, amendments and modifications) shall take priority over these Terms and Conditions. The contents of such arrangements shall be subject to a written contract or to our confirmation in writing.
1.3 Our Terms and Conditions apply only to commercial entrepreneurs (Sec. 14 of the German Civil Code (BGB)), legal persons under public law or special funds under public law.
1.4 Our Terms and Conditions as last amended shall also apply to future contracts on the sale and/or the delivery of movable goods with the same Customer, even if they have not been pointed out specifically.
2. CONCLUSION OF CONTRACT
2.1 Our offers are subject to change and non-binding.
2.2 Orders of the Customer qualifying as binding offers within the meaning of Sec. 145 of the German Civil Code (BGB) may be accepted by us within a time period of two weeks upon receipt of the order.
2.3 The acceptance may be declared in writing (e.g. by the order acknowledgment) or by delivery of the goods to the Customer.
2.4 We reserve all rights, including copyrights, to all illustrations, drawings, calculations and other documentation, including documentation designated as “confidential”. Any disclosure of such documentation by the Customer is subject to our express written consent.
3. DELIVERY, TRANSFER OF RISK
3.1 Unless otherwise specified in the order conformation, all deliveries are “ex works“. On request and at the expense of the Customer the goods are to be dispatched to a place designated by the Customer (sales shipment). Unless otherwise agreed, we are entitled to determine the kind of dispatching (especially the transport enterprise, route of shipment and packaging).
3.2 The return of packaging shall be subject to a separate agreement between the parties.
3.3 The risk of accidental loss and accidental deterioration of the sold good will pass to the Customer at the latest upon delivery, and in cases of sales shipment (Clause 3.1) upon delivery of the good to the freight forwarder, carrier, or any other person or institution assigned to such delivery.
3.4 If the Customer is in default with acceptance or wrongfully breaches any other duties of cooperation, or if the delivery is delayed for other reasons which the Customer is responsible for, we are entitled to demand compensation for any resulting damages, including any additional costs and expenses incurred as a result of the breach. We reserve the right to seek additional remedies in accordance with applicable law.
3.5 If the requirements for applicability of Clause 3.4 are satisfied, the risk of accidental loss or accidental deterioration of the sold good shall pass to the Customer at the time the Customer defaults on acceptance, payment or other obligations.
4. DELIVERY PERIOD, DELAY IN DELIVERY
4.1 The delivery time will be agreed on an individual basis or specified by us in the order conformation. The delivery period does not begin to run until all technical questions have been resolved.
4.2 Performance of our delivery obligations is conditional upon timely and due performance of the Customer's obligations. We reserve the right to refuse delivery in the event of the Customer's non-performance.
4.3 The accrual of our delay in delivery is regulated under the statutory provisions. In any case, however, a reminder of the Customer is necessary.
5. PRICES, PAYMENT TERMS
5.1 Unless otherwise stated in the order confirmation, all prices quoted by us are “ex works”, and exclude packaging; there is an additional charge for packaging. All prices quoted by us are exclusive of applicable VAT; VAT is stated separately in the invoice at the rate applicable on the invoice date.
5.2 In cases of sales shipment (Clause 3.1) the Customer is responsible for shipping costs ex stock. If requested by the Customer, we will provide insurance coverage for shipments at the cost of the Customer. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
5.3 Unless otherwise expressly agreed, the total amount invoiced is due in full (without any deduction) within 14 days upon receipt of the invoice and delivery of the good or acceptance by the Customer. In the event of the Customer's payment default, we may avail ourselves of all remedies provided for by applicable law.
5.4 Deduction of any cash discounts is subject to a special written approval.
5.5 The Customer shall have no right to offset any counterclaims against our claims for payment, unless such counterclaims are undisputed, or we have accepted liability for such claims. In addition, the Customer may exercise the right to withhold payment based upon any counterclaims only if such counterclaims arise from the same transaction.
6. RETENTION OF TITLE
6.1 We retain title to all sold goods until all our present and future claims arising from the supply contract and a current business relationship (the “Secured Claims”) have been paid in full.
6.2 The Customer shall treat the sold goods which are subject to retention of title (the “Reserved Good”) with due care; in particular, the Customer shall insure the Reserved Goods against the risks of fire and water damage, as well as the risk of theft, at replacement value. The Customer shall at its own cost perform any necessary maintenance and inspection work in a timely manner.
6.3 The Reserved Goods may be neither pledged nor transferred for security to third parties before the Secured Claims have been paid in full. The Customer shall provide us with prompt written notice of any attachment or other proceedings filed by third parties with respect to the Reserved Goods belonging to us, so as to allow us to take legal action in accordance with Sec. 771 of the German Code of Civil Procedure (ZPO). In the event that the third party is unable to indemnify us for any costs incurred in or out of court in connection with a legal action in accordance with Sec. 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable to us for such losses.
6.4 In the event of any breach of contract by the Customer, especially when the purchase price is not paid, we shall be entitled to rescind the contract according to the statutory provisions and/or to repossess the Reserved Good on the basis of the retention of title. Repossession of the Reserved Good shall not result in rescission of the contract; we shall rather be entitled to repossess the good and to reserve the right of rescission. Upon repossession of the good, we shall be entitled to sell the good to a third party and to credit the sales proceeds against the amount due from the Customer, subject to deduction of reasonable sales costs.
6.5 The Customer is entitled to resell the Reserved Goods in the ordinary course of business. However, the Customer, already at this point, assigns to us any claims in the total of the outstanding invoice amount (including VAT) which are owed to him from the resale of the Reserved Good to his customers or third parties. We hereby accept the assignment. The Customer remains authorized to collect these claims even after the assignment. Our authority to collect the claims ourselves is not affected by this; but we undertake not to collect the claims, as long as the Customer properly meets his payment obligations and is not in default of payment. If this is nevertheless the case, we can demand that the Customer make known the assigned claims and their debtor, give all details required for collection, hand over the relevant documents and the inform the debtors (third parties) of the assignment.
6.6 We undertake to release, upon demand of the Customer, any security interests which we are entitled to, if and to the extent that the enforceable value of such security interests exceeds by more than 10 % our claims secured by such security interests; the security interests subject to release shall be selected by us.
7. LIABILITY FOR DEFECTS
7.1 Any claims for defects by the Customer are conditional upon compliance with the inspection and notice obligations defined in Sec. 377 of the German Commercial Code (HGB). The goods delivered by us must be inspected and notice of any defect must be provided to us within two weeks of receipt. If the Customer fails to report a defect as indicated above, we are exempt from liability for the defect which had not been reported.
7.2 If the good delivered is defective or lacks guaranteed characteristics, we may, at our choice, provide subsequent performance (cure) either by removing the defect (remedy) or delivery of a good free of defects (replacement) within an appropriate time period. The Customer shall allow us the time and opportunity necessary for the owed cure action, especially handover the faulty good for testing purposes. We shall bear all costs and expenses necessary to provide such subsequent performance, including costs of shipping and transportation, and costs of labor and materials, unless such costs increase because goods are delivered to a location other than the agreed place of performance. In the event of the replacement, the Customer shall return the defective good to us. Claims process, costs related to the shipping and transportation outside the EU are to be discussed on an individual basis.
7.3 We shall be entitled to make the subsequent performance owed by us conditional upon the Customer paying the outstanding purchase price. The Customer, however, may withhold a part of the purchase price reasonable in relation to the defect.
7.4 In urgent cases i.e., whenever the operational safety is put at risk, or to defend against unreasonable damages, or with our consent, the Customer shall be entitled to (on his own accord) remedy the defect himself and demand from us the compensation for the corresponding (objectively necessary) expenses. In this case we must be immediately notified of such self-remedy action taken by the Customer – or, insofar as possible, in advance of this action. The right to provide self-remedy actions shall not apply when we were entitled to deny the subsequent fulfillment according to the statutory provisions.
7.5 If the subsequent performance failed, or a grace period for the subsequent performance as determined by the Customer expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. The right of withdrawal, however, shall not apply upon the occurrence of an insignificant defect.
7.6 The Customer's claims for damages or compensation of futile expenditure shall only exist in compliance with the Clause 8, otherwise they shall be excluded.
8. ADDITIONAL SCOPE OF LIABILITY
8.1 Unless otherwise provided for in these Terms and Conditions including the following provisions, we shall be liable for breach of contractual and non-contractual obligations according to the statutory provisions.
8.2 We shall be liable for damages compensation – irrespective of the legal grounds – in the event of malicious intent and gross negligence. In the event of simple negligence, we shall be only liable for the following:
a) for damages arising from injury to life, body or health,
b) for damages arising from the breach of a significant contractual obligation (this is an obligation the fulfillment of which is subject to the due execution of a contract and the observance of which the contractual partner relies on and may rely on regularly); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from Clause 8.2 shall not apply insofar as we have refrained, with malicious intent, from disclosing a defect or on our own accord assumed a guarantee for the condition of the goods. The same shall apply to the Customer’s claims according to the Product Liability Act (Produkthaftungsgesetz).
8.4 The limitations of liability provided for in Clauses 8.2 shall also apply if the Customer demands compensation of futile expenditure instead of his claim for compensation for damages in place of performance.
8.5 Except as provided in Clauses 8.1 to 8.3 any liability for damages – regardless of the legal grounds for the Customer's claims – is hereby excluded. This applies, without limitation, to any claims for damages based upon culpa in contrahendo or any other breaches, as well as to any tort claims for damages in accordance with Sec. 823 of the German Civil Code (BGB).
8.6 To the extent that our liability is excluded or limited, such exclusion or limitation shall also apply to any personal liability of our employees, staff, agents and representatives.
8.7 On grounds of an infringement upon obligations which does not constitute a defect, the Customer may only withdraw from or rescind the contract of purchase if we are responsible for the infringement upon such obligations. Furthermore the statutory requirements and legal consequences shall apply.
9. LIMITATION PERIOD
9.1 Any claims for defects shall be subject to a limitation period of 12 months from the transfer of risk.
9.2 The limitation period for any claims against suppliers in accordance with Sec. 478, 479 of the German Civil Code (BGB) as well as for real claims for restitution of property of third parties (Sec. 438 Para. 1 No. 1 of the German Civil Code (BGB)) and compensation claims specified in Clauses 8.2 and 8.3 shall remain unaffected thereby. In these and other cases statutory provisions governing limitation periods shall apply exclusively.
10. PLACE OF PERFORMANCE, APPLICABLE LAW, JURISDICTION
10.1 Unless otherwise stated in the order confirmation, the place of performance for all obligations shall be our registered office.
10.2 All agreements with the Customer as well as this General Terms and Conditions shall be governed by and construed in accordance with the laws of the Federal Republic of Germany; applicability of the UN Convention on Contracts with International Sale of Goods is hereby excluded.
10.3 Provided that the Customer is a merchant within the meaning of German commercial law, any disputes shall be determined by a court of competent jurisdiction at the place of our registered office in Hamburg, provided however that we shall have the right to file suit against the Customer in any court of competent jurisdiction at the place of the Customer's residence.