General terms and conditions - VELOX GmbH and VELOX Composites GmbH
Only for use in commercial contacts between companys
The following terms and conditions apply to our entire commercial contact with our suppliers and our customers. Any terms and conditions of our contracting partners are hereby expressly rejected. Agreements contrary to these terms and conditions require our written confirmation. Employees lacking power of representation may not enter into agreements which contradict these terms and conditions.
2. Offers, Orders
Our offers are not binding and subject to change without notice. Orders will become legally binding only through our written confirmation thereof, or our actual delivery.
3. Payment Terms
Our deliveries occur against an invoice, payment of which is immediately due without deductions upon receipt thereof. The customer will be in default one day after expiry date if he has not paid theretofore. All customer's rights of retention or set-off are hereby excluded to the extent that they are not based on the same contractual relationship. Customer's retentions or set-offs are allowed only if the customer's claim is non-disputed, or has become unappealable. With respect to suppliers belonging to a group of consolidated companies, we are permitted to assert retentions or set-offs against such a supplier based upon claims we hold against another member of that supplier's group of consolidated companies. In the event that a customer defaults in payment, we are entitled to demand interest on the unpaid balance at the rate charged against current account overdrafts by our business bank, or at least 8% above the current rate charged by the European Central Bank on the main refinancing operations. In the event of a customer's default in payment or other apparent credit unworthiness, all remaining claims against that customer shall become due and payable in full immediately. We shall then be entitled to rescind previously agreed upon payment terms, and to demand payment in advance, or other appropriate security with respect to pending deliveries. A customer shall be deemed unworthy of credit when, in particular, it files a petition for institution of composition or bankruptcy proceedings, or when our credit insurance has removed the customer from its group of insured customers.
4. Deliveries for call-off
Contracts on agreed upon partial deliveries for our customer's call-off, the customer's call-off represents a material contractual duty. Two weeks after expiry of the latest possible date for the respective single call-off, the customer shall be regarded as in default of acceptance and of payment, without any further notice on our behalf. Upon expiry of at least three individual call-off deadlines, we are entitled to withdraw from the contract as a whole, and shall be entitled to claim damages for the entire contract.
5. Delivery, Passing of Risk
Even without explicit agreement, we are entitled to make partial deliveries. Short deliveries or surplus deliveries of up to 10% of the contract quantity are permitted. Should an obstacle to delivery arise for which we are not responsible, the delivery deadline shall be extended equaling the obstacle's duration. Wherever a delivery deadline is not met, the customer must grant an appropriate grace period of at least three weeks to complete delivery. The passing of risk takes place upon delivery to the carrier. This also applies when we assume the costs of transport. Deliveries which are not taken by the customer shall be stored at customer's cost and risk. The dates of our delivery identify the date of delivery to the carrier. We will only take back packaging materials upon written agreement. Delivery subject to timely and correct self supply.
6. Reservation of Title
Goods delivered by us shall remain our property until customer's payment in full of all balances owed. We are entitled, without granting a grace period, and without prior repudiation of the contract, to demand customer's return of the goods subject to title reservation, provided that the customer has defaulted on one of its obligations arising from our business relations. The taking back of said goods shall only be deemed to constitute repudiation of the contract upon our express written declaration. The customer shall bear all costs resulting from such taking back. Upon unsuccessful warning, we are entitled to resell all such goods taken back, and to set off the resulting sales revenues against our claims. If delivered goods subject to title reservation are processed, we acquire ownership in the resulting product(s). If goods subject to title reservation are processed, mixed or combined with goods owned by a third party, we will acquire joint property in the resulting product(s), in proportion to the respective invoice value of the goods. If goods subject to title reservation are mixed or otherwise combined with items solely owned by the customer, the customer hereby already expressly assigns its property rights in the newly created items to us. As a security, the customer hereby assigns to us all claims arising from its sale of goods subject to title reservation, in proportion to our property rights in said goods. In this context, any assignment by the customer to third parties of reserved property rights, including those within the framework of factoring transactions, is inadmissible. The customer shall insure goods subject to title reservation against the usual storing risks, and hereby assigns to us its claims arising under such insurance policies. The customer shall, upon our request, hand over such policies so that we may assert insurance claims. In case of indications that the realization of our claims may be in danger, the customer shall, upon request, disclose to its customers the assignments, and shall provide us with all necessary documents and information. Customer shall notify us of any third party attachment or other action against goods subject to title reservation, immediately after taking notice. The customer will meet all costs arising in connection with efforts to lift such third party attachments or other action, in particular, costs connected to a third party action against execution ("Drittwiderspruchsklage"), as far as such costs cannot be recovered from the respective third party.
7. Technical and Chemical Information
We furnish technical and chemical information about the goods, and advice regarding their use or application, according to our best knowledge and belief. However, said information is non-binding, and does not release the customer from its own duty of care or its independent duty to observe legal or administrative regulations. Such information shall only be regarded as a guarantee where it is expressly declared so in writing.
Customer is required to notify us in detail and in writing of recognizable defects no later than 7 days following delivery, and prior to any processing of the goods. Customer's duty to inspect extends to the entire shipment. Hidden defects are to be notified in the same manner no later than 7 days from discovery. We shall be granted opportunity to inspect objected goods before the customer modifies, or processes said goods, or supplies them to others. If existence of a defect is established, we will, at our discretion, remedy the defect, or replace the goods in exchange for return of the defective goods. If the remedy or replacement fails, customer shall have the right to reduce the purchase price or demand refund of the purchase price in exchange for return of the defective goods. We do not guarantee that goods supplied by us are free from third party industrial property rights.
Claims for repudiation of the contract founded on the breach of a contractual duty other than a good's defect are only admissible where we can be held responsible. Liability for violations of duty arises in case of intent or gross negligence, and in the event of a duty which is recognizably material for the fulfillment of the contract's purpose even in case of slight negligence. In all other cases, our liability shall be excluded. This limitation of liability shall not take effect where we have assumed a guarantee, for damages under the Product Liability Act, or for personal injuries to body, health or life. Where we are liable for gross negligence on behalf of our non-management staff or mandatees, or for simple negligence, our liability is limited to the damages foreseeable at the time of contract formation. In such cases our liability is furthermore limited to an amount of twice the purchase price, and is completely excluded for consequential damages and loss of production or profits.
10. Jurisdiction, Governing Law, Miscellaneous
Place of payment is Hamburg, for delivery, the place of dispatch. All disputes arising from the business relation where we appear as plaintiff shall, at our discretion, be resolved either through the state courts of Hamburg or any other court of choice under the German Civil Procedure Code (ZPO), or under the exclusion of the state courts, through binding arbitration before a panel created under the Hamburg Friendly Arbitrage. Place of arbitration shall be Hamburg, Germany; the official language of the proceedings German. Where our contractual partner intends to sue us, prior to the litigation, we have to be asked in writing to choose within two weeks between the above mentioned state courts and arbitration. Where we fail to choose in time, the competence of the state courts of our registered seat shall be deemed agreed upon. Governing law is German law, including the provisions of the UN Convention on the International Sale of Goods (CISG). In the event that payment is to be made against a commercial documentary credit, the relevant provisions of the International Chamber of Commerce in Paris (ICC) shall also apply in their current version. The customer permits our electronically storing and processing its personal data in regards to the business relation, and that it will not receive notice thereof in each individual case. In the event that any of the preceding terms or conditions should be deemed invalid, said invalidity shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by regulations whose economic consequences agree as closely as possible with those intended by the ineffective clause.