1. General Provisions
The following Terms and Conditions shall exclusively apply to all our sales and deliveries to commercial business partners. Differing terms and conditions, if any, particularly those in excess hereof, shall require our written consent. The amendment of individual provisions shall not affect the remaining provisions. Without our express consent, no rights and obligations under the Purchasing Agreement may be assigned to any third parties. Until otherwise agreed, these Terms and Conditions shall apply to all current and future business relations with our commercial business partners, even in the event that a single order is placed within an existing business relationship, and no particular reference is made to these Terms and Conditions. Opposing or contradictive General Terms and Conditions of customer or third parties shall not apply in any case, even if they have not been specifically contradicted by us in the relevant case. The customer hereby declares his consent to the collection, processing, storage and use of his personal data by the supplier in accordance with Section 4 German Federal Data Protection Act.
All offers are non-binding and without obligation on our part. Unless expressly agreed otherwise, all prices are understood net ex works, exclusive of packaging. Our prices are calculated on the basis of the economic conditions existing at the time of conclusion of the contract. If production costs increase between the conclusion of the contract and delivery due to an increase in the cost of materials, wages, salaries or other costs of operation, we shall be entitled to charge price premiums, provided that the statutory period is complied with. The prices applicable on the date of delivery shall be invoiced.
sOrders shall only be deemed accepted if confirmed by us in writing. The receipt of electronically transmitted purchase orders or orders will generally be acknowledged by us. The acknowledgment of receipt, however, does not yet represent a binding acceptance of the purchase order or the order. The acknowledgment of receipt may be connected with the notice of acceptance. If immediate delivery is made without separate acknowledgment, the invoice shall be deemed as respective order acknowledgment. Our General Terms and Conditions of Delivery and Warranty shall also apply to such deliveries.
The fixing of the exact delivery time is reserved to our own discretion for each individual order. The delivery time shall be deemed respected upon due notification of despatch in the event duly despatch should be defaulted or has become impossible without our fault. Customer is not entitled to reject partial deliveries. In the event of custom-made products, over-deliveries and under-deliveries of up to 10% of the order quantity shall be permitted. Our obligation to comply with the agreed delivery dates may be assumed only under the condition of an undisturbed production sequence and shall be subject to the condition of correct and timely delivery by our suppliers. In the event of force majeure or business disruption for which we bear no liability, regulatory action, shortage of raw materials and supplies at the time of manufacture and other unpredictable, impeding factors in our business and/or of our suppliers for which we are not responsible, we shall be entitled to rescind from the contract. We shall notify the customer about the unavailability of the service without delay. We shall refund the consideration paid by the customer without delay. We shall also be entitled to exercise the aforementioned right of rescission if the impeding circumstances arise at a time when we are already in default. We shall be entitled, but are not obliged to subsequent delivery of the non-delivered portion of the merchandise. In the event of a delay in delivery, financial compensation claims of customers shall be limited to the value of the goods to be delivered on the basis of respective contract. In the event of non-performance of the contract as result of breach of contract for which we bear the liability, our liability for slight negligence shall be excluded on the merits and with respect to the amount, unless the customer proves that we have breached fundamental contractual obligations to be performed by us or our agents. In such event, the liability of the supplier shall be limited to the predictable, typical, direct average damage amount based on the type of goods. The supplier shall be fully liable for damages caused by slight negligence by the supplier or its legal representatives or agents in case of injury to life, limb or health. The supplier's liability shall also be unlimited for intentional or grossly negligent damages caused by the supplier. Claims for damages that are based on negligence of the supplier shall lapse after one year from the date of delivery. The foregoing limitations of liability shall not be applicable to claims of the customer under product liability. The risk of accidental loss and accidental deterioration of the products shall pass to the customer upon handing over of the products. In the event of a contract of sale involving the carriage of goods the above named risk will pass upon the customer with the handing over of the products to the freight forwarder, freight carrier or any other person or institution designated to carry out the transport or shipment. If the despatch of the goods is impossible although we are not liable for this, the risk shall already pass to the customer upon receipt of notification of readiness for shipment. In lack of specific instructions, the choice of the transport route and means of transport shall be made at our discretion without any obligation to select the least expensive and fastest method. Shipping shall always even in the event of freight prepaid delivery and/or in the event of retention of title take place at the sole risk of the customer.
We warrant good quality and careful execution of the supplied goods for a period of 12 months from date of handing over respective goods to customer or the third party which is responsible for transportation or shipment of respective goods. This warranty exclusively comprises the lack of defects in material and workmanship for the aforementioned period. We are obliged to repair or replace defective parts for the duration of the warranty period on our own expense. Defective parts shall be sent to us by customer solely on his own costs, especially by carriage paid. Credit of the parts shall be reserved. Our warranty does not cover natural wear of components. We are not liable for damage or consequential damage caused by misuse, neglect, excessive use or failure to follow operating instructions. Our entire warranty shall expire immediately when changes or repairs are made without our written consent. Warranty claims under Section 437 German Civil Code which can be claimed in addition to the warranty liability of the supplier shall expire after one year from delivery of the goods.
Notice of defects and other complaints regarding weight, quantity, quality or execution of the goods are to be submitted in writing immediately upon discovery - at the latest, however, within 8 days from receipt of the goods by customer or his agents. Defects, which cannot be discovered even after careful examination within this period are to be notified without delay after their respective discovery. For defects or deficiencies of the delivered goods, the supplier shall, at its discretion, offer repair or replacement (supplementary performance). Any refund of the customer's expense for any dismounting or reinstallation of defective goods shall be excluded. If subsequent performance fails, the customer, at his discretion, may request price decrease (reduction) or cancellation of the contract (rescission). For a minor breach of contract, especially with respect to minor defects, the customer shall not be entitled to rescission. In the event of failure of subsequent performance, the customer should decide to rescind from the contract, he shall not be entitled to claim financial compensation resulting from defects or deficiencies of respective goods. If the customer chooses compensation after failed subsequent performance, the goods shall remain at the customer as long as he must reasonably bear it. The compensation for damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if the supplier has fraudulently caused the breach of contract. Claims for damages because of breach of contract committed by the supplier, its legal representatives or vicarious agents due to negligence shall be excluded on the merits and with respect to the amount, unless it is a breach of fundamental contractual obligations by the supplier or his agents. In such event, the liability of the supplier shall be limited to the predictable, typical, direct average damage amount based on the type of goods. The supplier shall be fully liable for damage caused by slight negligence by himself or its legal representatives or agents leading to an injury to life, limb or health. The warranty does not cover defects attributable to improper construction or improper choice of materials if the customer has requested the design or the material despite suppliers prior contradictive notice.
7. Retention of Title
Delivery of the goods shall be made under retention of title pursuant to Section 455 German Civil Code with the following extensions. The goods shall remain the Seller's property until full payment of all present and future claims of the Seller against the Buyer under the mutual business relationship.
a) The transfer of ownership of the Buyer of the goods in accordance with Section 950 of the German Civil Code shall not take place and shall not become valid in the event of processing or transformation of goods which are subject of respective sales contract. Any processing shall be performed by the Buyer on our behalf. The processed goods shall serve as our collateral in the amount of the value of the goods.
In the event that goods are processed or combined by the Buyer with other items not belonging to the Seller, we shall be entitled to joint ownership of the newly created item in proportion to the value of the conditional goods to the other processed goods at the time of processing. Otherwise, the same shall apply to the new items created from the processing as to the conditional goods. They shall be regarded as conditional goods within the meaning of these Terms and Conditions.
b) Customers claims for purchase price against third parties as result from the sale of the conditional goods belonging to the Seller in whole or in part are hereby assigned by Customer to Seller, irrespective of whether the goods are sold without processing or after processing and whether they are being resold to one or more customers. The assigned receivables shall serve as collateral security for Seller but limited to the value of the respective conditional goods which were subject of respective contracts between Seller and Customer.
In the event that the conditional goods are sold by the Customer together with other goods not belonging to Seller, irrespective whether the goods have been processed or not, the assignment of the purchase price receivables shall be limited to the value of the goods which have been sold by Seller under the condition of retention of title and which were - partly or entirely - subject of respective purchase contract with Customer.
The Buyer shall expressly refrain from concluding agreements with a third party buyer stipulating that the purchase price receivables arising from the resale are unassignable or assignable only with the consent of the third party buyer. All items that are our property in whole or part are to be kept, processed and resold separately by the Buyer.
c) The Buyer shall be entitled to resell the conditional goods in the ordinary course of business and only provided that the purchase price receivable for the resale is transferred to the Seller in accordance with Article 7 hereof. The Buyer shall not be entitled to any other dispositions, in particular to the attachment and collateral assignment of our goods. The Buyer is obliged to notify Seller immediately in the event of infringement of our rights by third parties (particularly in the event of seizure by his creditors).
d) The Buyer shall be authorized to collect the receivables from resale despite the assignment. Seller shall remain entitled to collect these receivables unaffected by the Buyer's collection authority. We shall, however, not collect the receivables assigned to us as long as the Buyer duly fulfils his payment obligations. Upon demand of Seller Customer has to disclose the identity of his debtors and inform them about the assignment which is subject to respective purchase contract.
e) The retention of title in accordance with the foregoing provisions shall also continue if individual receivables become subject of a current account and the balance of such account has been confirmed and accepted. Our retention of title is also conditional to the effect that upon full payment of all our receivables arising from the business relationship, the ownership of the goods which are subject to respective purchase contract shall be transferred to the Customer with the effect that Customer becomes unconditional proprietor of respective goods being entirely entitled to the assigned purchase claims against third parties.
f) We undertake, at the request of the Buyer, to release the collateral security to which we are entitled in accordance with the foregoing provisions to the extent that their value exceeds the secured claims by 20%. In the event of the existence of a current account the release of security comprises only claims of Seller for such goods or their replacement values, which have been fully paid by Customer or third Parties.
Payments are to be made immediately upon receipt of the invoice. In this case Seller concedes a 2% discount, otherwise payment has to be made within 14 days net. After the 1st reminder, default interest shall be charged at the customary rate charged by banks for overdrafts. The discount shall not apply if older invoices are still unpaid at the time of payment. Payment by bills of exchange shall be subject to special agreement. The assertion of additional default damages shall remain unaffected.
Drawings, documents and drafts of our company may not be disclosed to any third party by the recipient. Offenders shall be liable for full damages. Drawings or documents sent with offers are to be returned immediately by the recipient if no order is placed.
10. Place of Performance and Legal Forum
Place of delivery and payment is our registered office in Hamburg. Legal Forum for any and all disputes arising out of the contractual relationship is Hamburg or, at our discretion, the general legal forum of the customer. This agreement shall exclusively be governed by the laws of the Federal Republic of Germany in exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Should one or several provisions be invalid, the statutory provisions shall apply. This shall, in particular, apply to liability.