General Terms and Conditions
1. General - Scope
1.1 Our General Terms and Conditions apply exclusively; we do not acknowledge any terms of the Customer, which are opposing to or different from our General Terms and Conditions, unless we have approved the application thereof explicitly and in writing. Our General Terms and Conditions will also apply, if we perform the delivery to the Customer unreservedly, while being aware of any terms of the Customer which are opposing to or different from our General Terms and Conditions.
1.2 Any agreements made between us and the Customer to the end of the execution of this Agreement have to be concluded in writing in this Agreement.
1.3 These General Terms and Conditions apply only against undertakings, legal persons governed by public law or separate estates governed by public law within the meaning of article 310 paragraph 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).
1.4 Our General Terms and Conditions also apply to any future business transactions with the Customer.
2. Offer - Offer Documents
2.1 If the order is to be classified as an offer within the meaning of article 145 BGB, then we may accept it within two weeks.
2.2 We reserve property and copyrights on pictures, drawings, calculations and any other documents; these may not be made accessible to any third parties. This shall particularly apply to any written documents, which are marked as confidential; prior to providing such documents to any third parties, the Customer must acquire our explicit written consent.
3. Prices - Terms of Payment
3.1 Except if otherwise provided in the order confirmation, our prices are ex works, excluding packaging; such will be charged separately.
3.2 The statutory value added tax is not included in our prices; it will be mentioned separately in the amount determined by law on the date, on which the invoice is issued.
3.3 If following the conclusion of the agreement levies, such as import or export levies (including skimming levies), taxes (including value added tax) or customs, are modified and as a result thereof our expenses for the fulfilment of the agreement are modified, we are entitled to increase our contractual price by the additional amount and demand reimbursement from the Customer. The same applies in case the costs for transportation or insurance of the goods are modified, provided that such cost modifications are not due to internal reasons.
3.4 Within the framework of our ongoing business relationship and until our written revocation, which shall be admissible at any time and may particularly be declared, if the Customer is in default of the fulfilment of its due obligations, we grant our Customers for our claims regarding the delivery of goods a credit limit for any claims deriving from the business relationship, which shall be determined in the order confirmation. Payment of each delivery of goods will be made within this credit limit either within three days from delivery with a 3% discount or within 14 days without any discount. If and to the extent that the credit limit used is exceeded with regard to the value of the goods of this and any prior, still payable deliveries entirely or in part, delivery will be completed on a step-by-step basis against payment of the amount exceeding the credit limit. If no credit limit is mentioned in the order confirmation, payment of the goods is due immediately upon receipt of the invoice without any discount. Following the due date, default interest in the permissible height according to article 288 paragraph 2 of the German Civil Code (BGB) will be charged. We reserve the right to claim further default damages.
3.5. The Customer will only have set-off rights, if its counterclaims have been finally adjudicated, are undisputed or acknowledged by us. This does not apply for the set-off against synallagmatic counterclaims. Furthermore, the Customer will be entitled to exercise its right of retention insofar as its counterclaim is based on the same contractual relationship.
4. Transfer of Risk - Shipping
4.1 Except if the order confirmation provides otherwise, delivery will be agreed as ex works.
4.2 In case the goods are shipped upon the Customer’s request, the risk of accidental loss or accidental deterioration of the goods will pass to the buyer at the time of shipment.
5. Delivery and Delivery On Call
5.1 We are entitled to perform partial deliveries, if these partial deliveries can be used by the Customer independently and no fixed delivery date has been agreed for the entire delivery.
5.2 In case of deliveries on call, the call and the acceptance of the goods are considered as one principal contractual performance.
5.3 If the Customer does not accept or call for the goods within the agreed upon or reasonable time limits, we will, after the expiry of a reasonable extension of time, also be entitled according to our choice to charge the Customer for the goods and ship them to the Customer unsolicitedly or to withdraw from the Agreement and/or demand compensation for non-fulfilment. If this regards a part of the goods, we are also entitled to demand immediate payment of the remaining quantities and to withdraw from the Agreement respectively.
6. Delivery Period
6.1 The beginning of the delivery period mentioned by us requires clarification of all technical issues.
6.2 If due to reasons, for which we are responsible, we are in default of delivery, the Customer is entitled to demand liquidated default damages in the amount of 3% of the value of the delivery for every completed week of default, up to maximum 10% of the value of the delivery. If the default is due to wilful misconduct or gross negligence or represents a material breach of a contractual obligation, the statutory liability will remain, but will in case of merely a negligent breach of a contractual obligation be limited to the foreseeable damage in each case.
6.3 If the Customer, upon our being in default, sets a reasonable additional time limit, he will upon fruitless expiry of such additional time limit be entitled to withdraw from the Agreement; the Customer will only be entitled to damages instead of fulfilment in the amount of the foreseeable damage, if the default is due to wilful misconduct or gross negligence or a material breach of a contractual obligation; besides, liability for damages is limited to 50% of the actual damage.
6.4 The limitations of liability according to 6.2 and 6.3 do not apply, if a commercial fixed date transaction has been agreed; the same will apply, if the Customer may due to the default, for which we are responsible, claim that the immediate claim of compensation for the damage instead of fulfilment is to be considered.
6.5 Fulfilment of our delivery obligations is dependent on timely and due fulfilment of the Customer's obligations.
6.6 If the Customer is in default of acceptance or if it violates any other obligations of cooperation, we are entitled to demand compensation for actual damages suffered, including any additional expenses. In this case the risk of accidental loss or accidental deterioration of the goods will be transferred to the Customer at the time, when the Customer gets into default.
7. Warranty for Defects
7.1 The Customer's warranty rights require that the Customer has duly fulfilled its examination and complaint obligations as set forth in article 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
7.2 In case of any defect in the goods, for which we are responsible, we are entitled at our option either to subsequent fulfilment in form of removal of the defect or to replacement delivery. In case of removal of the defect we are obliged to bear all expenses required for the removal of the defect, particularly transportation, travel, labour and material costs, provided that these are not increased due to the fact that the goods were transported to a different location than the place of performance.
7.3 If subsequent fulfilment is unsuccessful, the Customer may at its option declare withdrawal or demand of a corresponding decrease of the purchase price (reduction).
7.4 Except if provided otherwise below (7.5 and 7.6), any further claims of the Customer - independent of the legal basis - are excluded. Therefore we accept no liability for damages, which have not been incurred to the delivery item itself; in particular, we do not accept liability for lost profits or other damages to the Customer's property.
7.5 If the cause of damage is due to wilful misconduct or gross negligence, we will be liable according to the statutory provisions. The same will apply, if the Customer claims damages due to absence of a warranted qualification of the object instead of fulfilment.
7.6 If we culpably violate a material contractual obligation, liability will be limited to the damage, which is typical for the Agreement; as for the remainder it will be excluded according to 7.4. A material contractual obligation within the meaning of these GTC is given, if we culpably violate such obligations, on the due fulfilment on which the Customer relies and may rely, because they characterise the Agreement.
7.7 The warranty period will be twelve months, beginning on the transfer of risk.
8. Total Liability
8.1 Liability for damages beyond the limitations set forth in 7.4 to 7.6 is - without regard to the legal nature of the asserted claim - excluded.
8.2 The provision in 8.1 does not apply to claims according to articles 1, 4 of the German Product Liability Act (Produkthaftungsgesetz). It also does not apply if we are liable for bodily injury or health damages due to other legal grounds.
8.3 Except if the limitation of liability according to 7.6 applies in case of claims of manufacturer liability according to article 823 BGB due to material damages, our liability is limited to the insurance compensation. If this is not or not entirely paid, we are liable ourselves up to the amount of the insurance coverage.
8.4 The provision in 8.1 also does not apply in case of initial incapacity or impossibility of performance, for which we are at fault.
8.5 Insofar as our liability is excluded or limited, this will also apply to the personal liability of our employees, staff, colleagues, representatives and agents.
9. Security of Reservation of Ownership
9.1 We reserve ownership of the goods delivered by us until receipt of all payments under the delivery agreement. In case the Customer violates the Agreement, particularly in case of default of payment, we are entitled to take the goods back. By taking back the goods we do not withdraw from the Agreement, except if we declare this explicitly and in writing. Seizure of the goods by us will always include a withdrawal from the Agreement. Upon acceptance of returned goods we are entitled to utilization thereof, the proceeds of the utilization will be set off against the Customer's obligations - minus reasonable utilization costs.
9.2 The Customer is obliged to handle the goods carefully; in particular he is obliged to adequately insure them at his own expense against fire damage, water damage and theft at replacement value.
9.3 In case of seizure or any other intervention by any third party the Customer is obliged to notify us immediately in writing, so that we may bring an action according to article 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). To the extent that the third party is unable to reimburse us for the judicial and extrajudicial costs of an action according to article 771 ZPO, the Customer is liable for the loss incurred by us.
9.4 The Customer is entitled to re-sell the goods in the ordinary course of business; the Customer, however, already assigns any claims in the amount of the final invoice (including value added tax), which it acquires by re-selling the goods to its customers or third parties, to us, regardless of whether the goods have been re-sold without or upon further processing. The Customer will be authorized to collect this claim even upon such assignment. Our entitlement to collect the claim ourselves will not be affected thereby. We agree, however, not to collect the claim, as long as the Customer fulfils its payment obligations under the proceeds received, is not in default of payment and in particular no application for the initiation of a bankruptcy or settlement procedure has been submitted and no suspension of payments exists. If, however, this is the case, we may demand that the Customer notifies us of the claims assigned and of the relevant debtors, provides all information necessary for the collection, delivers the associated documentation and notifies the debtor (third party) of the assignment.
9.5 The processing or modification of the goods by the Customer will always be made by us. The Customer's right to transfer of title of the goods will continue as for the modified object. If the goods are processed in connection with other objects not belonging to us, we acquire co-ownership on the new object in the ratio of the objective value of our goods to the other processed objects at the time of the processing. As for the object derived by the processing, the same will apply as for the goods delivered with reservation.
9.6 If the goods are inseparably mixed with other objects not belonging to us, we acquire co-ownership on the new object in the ratio of the objective value of the item sold by us to the other mixed objects at the time of the mixing. If the mixing is performed in such a way that the Customer's object may be considered as main object, it will be considered as agreed that the Customer transfers the co-ownership on a pro rata basis to us. The Customer will be responsible for the safekeeping of such sole or co-ownership for us.
9.7 We agree to release the securities, to which we are entitled to, if the Customer so demands, to the extent that the realisable value of our securities exceeds the claim to be secured by more than 10% or the nominal value by more than 50%; the choice of the securities to be released is ours.
10. Jurisdiction and Applicable Law
10.1 This Agreement is governed by the law of the Federal Republic of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
10.2. Place of performance and exclusive jurisdiction for any disputes arising out of or in connection with this contractual relationship is - as far as admissible - Hamburg.
We are entitled to process (within the meaning of the Data Protection Act) data received during our business relationship with our Customer relating to the latter, irrespective of whether this information has been provided by the Customer or a third party.
Valid from: September 2014