GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
1. Relevant conditions and scope
1.1 The following General Terms and Conditions of Sale and Delivery ("GTC") govern all purchase and delivery contracts as well as potential collateral agreements with our customers, unless expressly agreed otherwise.
1.2 Terms and conditions of the customer only apply if and to the extent we have expressly acknowledged their applicability. This also applies if we make delivery in the awareness of conflicting or deviating terms and conditions of the customer. Even in cases where we make reference to documents containing the general terms and conditions of the customer or a third party, such reference does not constitute an acknowledgement of the applicability of the customer's terms and conditions.
1.3 Our GTC only apply in dealings with companies within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or special assets under public law.
2. Information and advice, documents
2.1 Information and advice with regard to our products is given on the basis of our previous experience. The specified values are average values and do not represent information on the quality of the goods, unless they have expressly been designated as binding. We are under no obligation to observe the precise values and application possibilities if we provide simple advice and/or consultancy services. Clause 7 applies if the customer is nevertheless entitled to compensation.
2.2 All documents and objects made available to the customer in relation to our services will remain our property. We hold intellectual property rights and similar property rights within the meaning of the German Copyright Act in these documents and objects. The customer is not authorized to disclose the documents made available to him to third parties without our prior written consent.
3. Inception and subject matter of the contract
3.1 Our offers are always non-binding and subject to change, unless we specify a binding period for acceptance or a certain acceptance deadline. A purchase or delivery contract is only incepted upon us expressly confirming the customer's order, or upon us making delivery without separate confirmation. The content of our delivery contract is determined by the information in our order confirmation. An order is deemed accepted if the customer does not object to a modification of the contract by the order confirmation within one week from receipt of the order confirmation. We are under a statutory obligation to point out this circumstance. If we make delivery without a separate order confirmation, our delivery note will serve as order confirmation. The prices specified in our current price list apply to these deliveries.
3.2 All information concerning our products are as precise as possible, but only represent approximate values and are not to be construed as information on the quality of the goods, unless they have explicitly been designated as binding information. The customary deviations are deemed permissible to the extent our order confirmation does not specify limits for permissible deviations and such limits do not arise from any expressly acknowledged customer specifications. Such deviations in quantity will reduce or increase the agreed purchase price accordingly. The quality, suitability, qualification and functionality as well as the purpose of our goods are exclusively determined by our performance specifications and technical qualifications. Public statements, promotion or advertising by us or third parties do not constitute information on the quality of the goods.
3.3 Any guarantees concerning the quality or durability of our goods must explicitly be designated as such in the order confirmation. We do not guarantee the quality of samples or templates delivered by us, unless explicitly specified otherwise in the order confirmation. The same applies for the information in analyses.
4. Prices, payment terms, offsetting and withholding payment, prohibition of assignment
4.1 Our prices are, unless agreed otherwise, net prices denominated in Euro "ex works" (Incoterms 2010) (including standard packaging / not including packaging) and plus VAT at the applicable rate.
4.2 The purchase price falls due for payment after thirty (30) days from the invoice date. The customer comes into payment default if no payment is received within this period.
4.3 We will charge interest at an annual rate of nine (9) percentage points above the respective base interest rate of the European Central Bank, unless we demonstrate higher losses.
4.4 Offsetting by the customer against counterclaims or withholding payments on the basis of such claims is permissible only insofar as the counterclaims are undisputed, ready for decision or have been legally established as final and absolute. The prohibition of offsetting does not apply to counterclaims stemming from mutual obligations relating to our main performance and that are material contractual obligations.
4.5 Our claims will become due for immediate payment irrespective of the maturity of bills of exchange accepted on account of performance if the customer commits serious violations against contractual agreements and the customer is responsible for such violations. In this case, we are entitled to make any outstanding deliveries based on the same legal relationship subject to advance payment or the provision of collateral.
4.6 The customer is not authorized to assign claims stemming from this agreement to third parties without our consent.
5. Delivery, transfer of risk and consequences of delayed delivery
5.1 The delivery period is [eight (8) weeks], unless agreed otherwise. It begins with the day of the order confirmation as defined in Clause 3.1, and requires the clarification of all technical questions and the timely provision of all services to be provided by the customer and the fulfilment of any other obligations by the customer. Deliveries that do not pass through our premises (drop shipment) are compliant with delivery periods if the goods are dispatched from the origin within a time that allows for timely arrival at the recipient at customary transport times.
5.2 We will only be liable for delayed delivery or impossibility to deliver to the extent provided for in Clause 7. We will not accept liability if and to the extent the delayed delivery or impossibility is attributed to circumstances caused by the customer.
5.3 In cases of force majeure, non-delivery, defective or delayed delivery from our supplier, irrespective of the reasons (reservation of self-supply), or any other impediments to our performance for which we are not at fault, we are authorised to postpone the delivery for the duration of such impediment plus a reasonable additional period to resume our operations. If the impediment is expected to last for a prolonged period, namely more than four months, and we are not responsible for this, both parties are entitled to rescind the Agreement. If delivery should become impossible or unreasonable as a result of the aforementioned circumstances through no fault of our own, we are entitled to rescind the Agreement in whole or in part because of the part not yet performed. The customer will not be entitled to compensation of damage if the Agreement is rescinded in the cases specified above. The customer is not required to perform a return service and the prepayment will be refunded.
5.4 To the extent not expressly excluded, we are permitted to make partial deliveries in customary and reasonable quantities if (a) the customer can use the partial delivery for the purposes of the contractually agreed purpose, (b) delivery of the goods on back-order is certain and (c) such partial delivery would not result in significant additional expenses or additional costs, unless we agree to absorb these costs. 5.5 Where delivery on demand is agreed, on-demand orders must be placed within three (3) months from the date of the Agreement, unless agreed otherwise.
5.6 All sales are "ex works" (Incoterms 2010) to the place of delivery specified by us. To the extent not covered under Clause 5.7, the risk will transfer to the customer upon the goods being made available to the freight forwarding person, regardless of whether such person is part of our company or a third party.
5.7 The risk will pass to the customer upon coming into default of acceptance if the customer refuses acceptance of the goods/delivery or if the shipment is delayed for other reasons under the responsibility of the customer. Storage costs incurred after the risk has transferred will be borne by the customer. We are entitled to either (a) charge storage costs at the local market rates according to § 354 German Commercial Code, or (b) charge the additional expenses actually incurred for storage. We may also stipulate a grace period of fourteen (14) days to the customer and rescind the Agreement or claim damages in lieu of performance if the situation is not rectified within the set period.
6. Retention of Title
6.1 All goods delivered by us remain our property ("goods subject to retention of title") until the customer has made payment for all existing claims and claims impending after inception of the Agreement.
6.2 Any processing of the goods subject to retention of title is carried out for us as the manufacturer within the meaning of Section 950 BGB, without obligating us. Processed goods are deemed goods subject to retention of title pursuant to Clause 6.1. In the processing, combining and mixing of goods subject to retention of title by the customer with products of different origin into a new item or a mixed asset, we are entitled to joint title in the resulting product, in the proportion of the
value of the goods subject to retention of title at the time of delivery to the value of the other processed or mixed goods. The fraction of the joint title is deemed goods subject to retention of title pursuant to Clause 6.1.
6.3 If the goods subject to retention of title are combined with other goods and an item owned by the customer is deemed the main component within the meaning of § 947 BGB, the Parties agree that ownership in a fractional joint title will transfer to us in the proportion between the invoice amount of the goods subject to retention of title at the time of delivery and the value of the main component, and that the customer shall store our fraction for us at no additional charge. The fraction of the joint title is deemed goods subject to retention of title pursuant to Clause 6.1.
6.4 The customer shall store the goods subject to retention of title on our behalf at no additional charge for us. The customer must promptly notify us of any third party infringements against our rights.
6.5 The customer is only permitted to sell the goods subject to retention of title during the course of the customer's ordinary business activities under ordinary conditions and under an agreement concerning the retention of title if and to the extent it is ensured that the customer's claims from the resale are assigned to us in accordance with clauses 6.6 to 6.8.
6.6 The customer hereby assigns all claims arising from resale of the goods subject to retention of title including all ancillary rights to us. We hereby accept the assignment of the claims. They serve as collateral for our goods subject to retention of title in the corresponding amount. The customer is only authorised to assign claims to third parties with our prior consent.
6.7 If the customer sells the goods subject to retention of title together with other goods not supplied by us, the assignment of the claim from the resale only applies in the amount of the value of our goods subject to retention of title at the time of delivery. If goods in which we hold fractional joint title pursuant to clause 6.2 or 6.3 are sold, the amount of the assigned claims must correspond to the value of our fractional joint title.
6.8 If the assigned claim is included in a current account, the customer hereby assigns a proportion of such invoice total in the amount corresponding to the value of our fractional joint title to us. We hereby accept the assignment of the claim to us.
6.9 The customer is entitled, until cancelled, to collect claims from any resale according to Clause 6.5 to 6.7.
6.10 If the customer fails to perform the obligations stipulated in this Agreement, in particular if the customer is in payment default, then (a) we may prohibit the disposal, reworking or processing of the goods subject to retention of title as well as their mixing or combination with other goods; (b) may rescind from this Agreement pursuant to § 323 BGB or § 324 BGB; in this case, the customer will no longer have the right to possess the goods subject to retention of title and we may request that the goods be surrendered to us; we are further entitled to access the customer's business premises following consultation with the customer, take possession of the goods subject to retention of title at the customer's cost and to sell the goods against the best achievable consideration without prejudice to the customer's payment liabilities and other obligations; the proceeds from selling the goods subject to retention of title and the costs incurred by us will be credited towards the customer's liabilities; (c) the customer shall furnish us with the names of the debtors owing the claims assigned to us upon being requested to do so, so that we may represent the assignment and can enforce the claims; all proceeds stemming from assignments must promptly be paid to us upon receipt, if and as soon as our claims against the customer fall due; (d) we are entitled to cancel the previously granted direct debit authorisation.
6.11 If the value of the collateral we are entitled to exceeds the total amount of claims by more than 10%, we shall release collateral at our discretion in the corresponding amount upon request by the customer.
7. Warranty, liability, statute of limitations
7.1 The customer must carefully inspect the goods immediately upon arrival at their destination. The inspection must in particular evaluate the quality of the goods. If crates, boxes or other containers are delivered, randomly selected samples must be inspected. The delivery is deemed accepted unless a notice of defects is received by us via letter, email or fax and including a precise description of the defect within three (3) days from receipt of the goods at the destination, or in case the defect was concealed during the inspection within three (3) days from its detection.
7.2 Transport damages must immediately be reported to the freight forwarder; the reporting obligations of the General Terms and Conditions of German Freight Forwarders apply.
7.3 If a legitimate and timely notice of defect has been submitted to us, we may at our discretion either render subsequent performance by way of subsequent improvement or replacement delivery. Subsequent performance will be deemed failed after three unsuccessful attempts.
7.4 Our liability for all other claims for compensation of damage caused by or in connection with the defective goods, regardless of their legal grounds, is limited pursuant to clause 7.5 and 7.6.
7.5 We will only accept liability for claims for damages in tort, regardless of their legal grounds, including default, defective delivery, breach of contractual obligations or duties during contract negotiations, acts in tort, product liability (except for liability under the German Product Liability Act) where such damages have been caused by wilful intent or gross negligence. Liability for slight negligence is excluded, except in cases where essential contractual obligations are violated in a way that jeopardizes the purpose of the contract (cardinal obligation). The term cardinal obligation signifies in abstract terms obligations of which the fulfilment allows for the proper execution of the agreement in the first place and on the fulfilment of which the contractual parties can regularly rely on. If a cardinal obligation is violated, our liability is limited to the damage that was typical and foreseeable at the time the agreement was made. This limitation does not apply if the customer has suffered injuries to life, limb or health. The personal liability of our legal representatives, vicarious agents and employees for damage caused by slight negligence is excluded. This does not apply in the case of injuries to life, limb or health.
7.6 Claims by the customer for compensation for injuries to life, limb or health caused by a defect for which we are at fault or gross negligence on our part or the part of our vicarious agents are subject to the statutory statute of limitations. Warranty claims and other claims for compensation, for which our liability is limited according to Clause 7.5, will become statute-barred after one year from the statutory onset of the time of limitation. This does not apply if we have fraudulently failed to disclose a defect. Apart from that, statutory limitation periods apply.
7.7 We do not accept any liability stemming from agreements between the customer and his customers that go beyond the statutory warranty rights.
8. Place of Performance, applicable law and jurisdiction
8.1 The place of performance for all delivery and payment obligations is Hamburg, unless otherwise stated in the order confirmation.
8.2 The relationships between us and the customer are governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as any other bilateral or international treaties, including future ones, do not apply, including after being adopted in German law.
8.3 Place of jurisdiction for any disputes in connection with the Agreement is Hamburg or, at our sole discretion, at the place of the customer's registered office. The exclusive place of jurisdiction for claims brought by the customer is Hamburg. Statutory provisions prescribing exclusive jurisdiction remain unaffected. This agreement on the place of jurisdiction does not apply to private customers.
9. Final Provisions
9.1 The legal relationships between the customer and us are exclusively governed by the written Agreement and these GTC. It fully represents all agreements between the parties at the time the Agreement was concluded. Any oral or written agreements or conditions concluded prior to the conclusion of this Agreement and other pre-contractual correspondence and proposals are superseded by this Agreement, unless it expressly follows in each case therefrom that they are to remain in force.
9.2 Should any of the provisions contained herein be or become invalid, in whole or in part, this will not affect the validity of all remaining provisions of this Agreement.