1. General – Field of Applicability
1.1. Our terms and conditions of delivery shall apply exclusively; any opposing or deviating conditions on the part of the customer shall not be recognised by us, unless we have expressly agreed to their applicability in writing. Our terms and conditions of delivery shall also apply if we carry out the delivery to the customer without reservation in the knowledge of opposing or deviating conditions on the part of the customer, including any procurement directives of public corporations.
1.2. All agreements which have been concluded between ourselves and the customer for the purpose of implementation of this contract shall be recorded in this contract in writing. Amendments or additions to this contract shall require written form.
1.3. Our terms and conditions of delivery shall also apply in respect of all future business transactions with the customer in the context of its business operations in the course of the ongoing business relationship.
1.4. Our terms and conditions of delivery shall only be valid in relation to entrepreneurs as defined in §14 Paragraph 1 of the German Civil Code (BGB) and public corporations.
2. Offer and Documentation
2.1. Our offer is non-binding unless otherwise prescribed in the offer confirmation or if we have expressly declared otherwise in writing. A contract shall only come into existence once we have confirmed the order in writing or we implement the order.
2.2. We shall reserve rights of ownership and copyright in respect of images, brochures, calculations and other documents; they may not be made accessible to third parties. This shall, in particular, apply to those written documents which are identified as “confidential”. The customer shall require our express written consent prior to forwarding to third parties.
3. Prices – Terms and Conditions of Payment
3.1. Unless otherwise provided in the order confirmation, our prices shall apply from the place of delivery
(“ex-works”, Incoterms 2000), exclusive of packaging. The cost of transportation shall be charged additionally.
3.2. All prices are in euros and, to the extent that the customer is an entrepreneur as defined in § 14 Paragraph 1 of the German Civil Code (BGB), shall be exclusive of the sales tax (value added tax) to be charged. The deduction of discounts shall only be permitted if expressly agreed in writing in advance.
3.3. All invoices shall be payable in euros or in another agreed currency within 30 days of billing. Should the customer enter payment default, we shall be entitled to charge default interest of 5% (8% in the case of entrepreneurs) above the respective base rate of interest of the European Central Bank per annum.
3.4. Set-off rights shall only be available to the customer if its counterclaims have been legally recognised, are undisputed or are acknowledged by us. The exercise of a right of retention or performance refusal right on the part of the customer shall only be permitted if the same requirements are fulfilled or, in case of assertion of defect claims, the defects of the delivered goods have at least been made plausible (for example by means of written confirmation from a neutral person) and furthermore its counterclaim refers to the same contractual relationship.
3.5. Bills of exchange and cheques shall only be accepted as a conditional payment – if at all. The cost of bills of exchange and cheques shall be borne by the customer.
3.7. Should we be obliged to render any advance services and we become aware of circumstances following conclusion of the contract, in accordance with which a significant worsening of the asset situation of the customer can be assumed, we shall be entitled to either demand security within a reasonable deadline or demand step-by-step payment against delivery. Should the customer not comply with the above-mentioned demand, we shall be entitled to rescind the contract, subject to further statutory rights.
4. Delivery Time
4.1. The commencement of the delivery time stated by us is dependent on clarification of all necessary questions and compliance with the obligations on the part of the customer. Unless otherwise agreed or otherwise provided under the contractual relationship, the delivery time stated by us shall always be non-binding.
4.2. Delivery delays due to force majeure or due to unforeseeable circumstances for which we are not responsible, such as operational interruptions, strikes, lockout, lack of transportation facilities, difficulties in procuring raw materials, official decrees, non-timely delivery by our suppliers (to the extent that the customer is an entrepreneur under §14 of the German Civil Code, BGB or is a public corporation) shall not be considered as a delay in performance on our part. An agreed delivery deadline shall be extended by the duration of the hindrance. Should the hindrance last for more than one month, ourselves and the customer shall be entitled, following expiry of a reasonable period of grace, to rescind the part of the contract which has not yet been fulfilled.
4.3. Should the customer set us a reasonable period of grace following our delay, the customer shall be entitled to rescind the contract following expiry of the said period without any result; the customer shall only be entitled to damages in lieu of performance if the delay was due to intent or gross negligence, or key obligations were breached. In case of simple negligence on our part, our liability shall always be limited to foreseeable losses.
4.4. The limitation of liability in accordance with Paragraph 4.3 shall not apply if a commercial transaction was agreed; the same shall also apply if the customer can assert that its interest in fulfilment of the contract ceased to exist due to delays for which we were responsible. In such cases, the liability shall be limited to the losses which are typical of the contract and which are foreseeable.
4.5. Compliance with our delivery obligation shall be dependent on timely and proper fulfilment of the obligations of the customer.
4.6. Should the customer be in delay of acceptance or should the customer breach other co-operation obligations, we shall be entitled to demand compensation in respect of the losses incurred by us, including any additional expenses. In such cases, the risk of possible loss or deterioration of the object of purchase shall be transferred to the customer at the time when the customer enters delay of acceptance.
4.7. We shall be entitled to carry out partial deliveries, provided no recognisable interest of the customer stands in opposition to this.
5. Transfer of Risk
5.1. Unless otherwise agreed in writing, “ex works” (Incoterms 2000) shall apply as a delivery clause in relation to entrepreneurs and public corporations.
5.2. At the express wish of the customer, we will cover the delivery with transportation insurance. The cost of the insurance shall be met by the customer.
6. Return goods
6.1. Return of material without apparent defects is accepted only in case of an express commitment of the supplier in the order confirmation. The return is feasible only if the materials are in perfect conditions. The transport costs for the return to our warehouse are to be carried out by the customer.
6.2. The return is considered as accepted only with the issue of a credit note. In the return of materials still in condition to be sold a reintegration fee corresponding to 10% of the original purchasing price will be charged. The credit note for the customer will be of 90% of the original effectively paid price.
6.3. The credit note is valid for 1 year. This period starts from the date of the new purchase by the customer and is subjected to the issue of the credit note itself.
7. Defect Claims
7.1. The warranty rights (defect claims) of the commercial customer shall require that the said customer inspects the goods immediately on receipt and immediately submits a written complaint to us in respect of any visible defects following inspection and of any hidden defects following their discovery, giving specific details of the defect (§§ 377 and 378 of the German Commercial Code, HGB). Other entrepreneurs shall inform us of obvious defects in writing within 2 weeks of transfer of risk.
7.2. In case of assertion of defect claims, the customer shall be obliged to notify us of the relevant charge numbers. These are found directly on the containers. Without notification of the charge number, no quality control can take place.
7.3. Defect claims, including claims for damages on the part of the customer, shall be excluded if the customer does not comply with our generally published use regulations and rules, as well as our instructions of use or the recognised rules of technology when using our products and the loss can be attributed to this. The same shall apply in respect of loss or consequential loss which is caused by improper use of our products for which the customer is responsible.
7.4. Warranty claims of the customer for delivery items in respect of defects which arise following expiry of the permitted storage period notified by us shall be excluded.
7.5. We shall only be liable in respect of the services of our subcontractors and suppliers to the extent that the subcontractor or supplier is liable in relation to us, unless we have individually agreed to a limitation of liability of the subcontractors or our suppliers. The customer shall have a claim to assignment of the warranty rights available to us towards the subcontractors/suppliers to the amount of the rights possessed by the customer in relation to us.
7.6. Defect claims shall not exist if only minor deviations of quality or insignificant impairment of usability are present.
7.7. All of our specifications are merely descriptions of services and not guarantees, unless expressly agreed otherwise.
7.8. To the extent that defects in our products for which we are responsible exist, we shall be entitled to either correct the said defects or provide a new delivery.
7.9. Payments of the customer in case of complaints relating to defects may only be withheld to an extent which is reasonable in relation to the defects which have arisen. The said payments may also only be withheld in line with the requirements of § 5 Number 4, Sentence 2 of these terms and conditions.
7.10 Should the customer wrongly complain for reasons for which we are not responsible, wrongly claiming the presence of a defect for which is due to us, we shall be entitled to charge the customer in respect of reasonable expenses incurred in dealing with the defects or determining the defects.
7.11 We shall be entitled to charge the customer in respect of additional costs for the purpose of subsequent performance, in particular transportation, travel, work and material costs, to the extent that the expenses increase due to bringing the delivered product to a place other than to the delivery address.
7.12 Recourse claims of the customer in case of consumer goods purchases (§ 478 of the German Civil Code, BGB) shall be excluded in reference to the agreements of the customer with its consumers which go beyond the statutory defect claims of the consumers. The customer shall inform us immediately of defect claims on the part of its consumers so that we are in a position, according to our choice, to fulfil the said claims on the part of the consumers on behalf of the customer.
7.13 Defect claims, in particular material defect claims, shall lapse 12 months after the transfer of risk. The above shall apply in respect of any granted guarantees which are binding on us, unless otherwise prescribed therein. In respect of limitation periods for defect claims which are legally longer than 2 years (for example, for buildings), the statutory deadlines shall apply. Furthermore, the statutory deadlines shall apply in respect of recourse claims in accordance with § 478 of the German Civil Code (BGB). The said periods of limitation shall also apply to consequential damage caused by defects, provided that these are not asserted on the basis of unlawful acts. Should subsequent performance be required due to defective deliveries, the statute of limitation shall only be suspended from the time of defect complaint until subsequent performance and shall not start anew.
7.14 Before the customer can assert further claims or rights (rescission, reduction, damages or refund of expenses), we must initially be given the opportunity of subsequent performance within a reasonable time, unless we have granted a guarantee which prescribes differently. Should the subsequent performance fail despite two subsequent performance claims, should this be impossible or should we refuse subsequent performance, the customer shall be entitled to rescind the contract or reduce the remuneration. § 7 of these terms and conditions shall apply in relation to the assertion of damages and expense refund claims.
7.15 For claims due to defect of title, the following shall apply: a) Unless otherwise agreed, we shall be merely obliged to provide the deliveries in the country of the delivery address free from third party rights. b) In case of a violation of third party property rights for which we are responsible, we shall have the choice of either acquiring a sufficient right of use for the agreed or intended use at our expense and assigning it to the customer, amending the delivered product in such a way that the property right is not infringed or exchanging the delivered product, provided that the agreed or intended use of the delivered goods is not impaired thereby. Should this not be possible or should we refuse subsequent performance, the customer shall be entitled to the statutory claims and rights. § 7 shall apply in relation to damages and expense refund claims.
8.1. The assertion of damages claims and refunds of expenses due to defects to the delivered goods shall be excluded should we be unable to carry out subsequent performance for reasons which are not our responsibility. The assertion of damages claims for defects and consequential damage due to defects which concern the delivery of defective goods shall be excluded, unless we are responsible for the said defects.
8.2. The assertion of damages claims for breach of a durability guarantee granted by us or a third party (§ 443 Paragraph 2 of the German Civil Code, BGB) for which we are responsible shall be excluded if we were not responsible for the breach.
8.3. Number 6.2 shall apply accordingly.
8.4. Otherwise, damages claims and refund of expenses claims (hereinafter “damages claims”) of the customer shall be excluded, regardless of legal reason, in particular due to breach of duties under and in accordance with the contractual obligation, due to fault prior to or during conclusion of the contract and in relation to unlawful acts. In case of simple negligence on our part, our liability shall be limited to foreseeable and typical losses. The above shall not apply to claims in accordance with § 1, 4 of the German Product Liability Act (Produkthaftungsgesetz), in case of intent or gross negligence, in case of injury to life or damage to body and health due to assumption of a guarantee in respect of the presence of quality (quality guarantee), or in case of negligent breach of important obligations. Under no circumstances shall we be liable beyond the statutory entitlements. Amendments to the burden of proof are not connected to these provisions (7.1 to 7.4)
8.5. Our technical advice shall only take place at the request of the customer in accordance with its instructions. The customer shall be obliged to independently check and monitor the requirements of applicability and the type of use of the delivered products (local circumstances, suitability of the building, materials construction, statistics). To the extent that we provide technical advice as a gesture of goodwill, our liability for simple negligence shall be excluded.
9. Retention of title
9.1. Should the customer be an entrepreneur, the following shall apply (Paragraphs 8.1 to 8.7): We shall reserve ownership of the delivered objects until receipt of all payments in connection with the transaction. In case of breach of contract on the part of the customer, in particular in case of payment default despite a reasonable period of grace, we shall be entitled to retake possession of the delivered object. This shall not apply if the customer has applied for insolvency proceedings or insolvency proceedings were opened, on the basis of which an immediate retaking of the delivered goods is not permissible to us. Following the retaking of the delivered goods, we shall be entitled to realise the same. The realisation proceeds shall be set off against the customer’s liabilities – minus any reasonable costs of the realisation. The realisation rules of the Insolvency Code (InsO, Insolvenzordnung) shall not be affected.
9.2. The customer shall be obliged to carefully handle the delivered object; in particular, the customer shall be obliged to insure it against fire, water and theft damage at the customer’s own expense to an amount which covers replacement as new. To the extent that maintenance and inspection work is necessary, the customer must carry this out in good time at its own expense.
9.3. In case of attachments or other third party attacks, the customer shall notify us of this in writing without delay. The customer shall be liable in relation to us in respect of the court and out-of-court costs concerning any necessary lawsuit in accordance with § 771 of the German Code of Civil Procedure, ZPO (third party action against execution).
9.4. The customer shall be entitled to sell on the object of delivery in the course of regular business dealings. However, the customer shall then assign to us all claims to the sum of the final invoice amount (including value added tax) which accrue to it in the course of its resale in relation to its consumers and third parties and regardless of whether the delivered object has been resold without or following processing. The customer shall remain entitled to also collect the said claim following assignment. However, we shall be entitled to collect the claim ourselves if the customer no longer complies with its payment obligations in respect of the proceeds generated, enters payment default, has made an application for the opening of insolvency proceedings or such a petition has been filed, or if suspension of payment is present. In such cases, the direct debit mandate of the customer shall expire at the same time, without express revocation being necessary. In such cases, we may demand that the customer discloses the assigned claims and their debtors, that the customer gives us all the information and relevant documents necessary to assert our rights and informs the debtor (third party) of the assignment. However, we shall not be entitled to collect the claims if this would breach the terms of the German Insolvency Code (Insolvenzordnung).
9.5. Any processing or transformation of the delivered item by the customer shall always occur for our account. Should the delivered object be processed with other items which do not belong to us, we shall acquire joint ownership of the new item in relation to the value of the delivered item to the other processed items at the time of processing. For the object resulting from such processing, the same shall apply as for the goods delivered under reservation.
9.6. Should the objects delivered by us be incorporated into land in such a way that they become the property of the land owner on attachment, Number 8.5 shall apply accordingly.
9.7. At the demand of the customer, we shall be obliged to undertake to release the securities to which we are entitled; insofar as the value of our securities exceeds the claims to be secured by more than 20%, the choice of the securities to be released shall be our responsibility.
9.8. Should the customer not be an entrepreneur in accordance with § 14 of the German Civil Code (BGB), the object of purchase shall remain our property until the purchase price has been paid in full. Otherwise, Numbers (8.2), (8.3) and (8.6) shall apply.
10. Place of Jurisdiction – Place of Performance
10.1. Provided that the customer is a trader, the place of jurisdiction shall be Hamburg. However, we shall also be entitled to bring lawsuits against the customer at the court of its place of residence.
10.2. Unless otherwise provided in the order confirmation, the place of performance in case of traders shall be Hamburg.
11. Applicable Law, Severability Clause
11.1. The legal relationships between the parties shall be governed exclusively in accordance with German law, to the exclusion of the UN Convention on the International Sale of Goods UNCITRAL/CISG).
11.2. Should one of the provisions of this contract be ineffective, the effectiveness of the remaining provisions shall not be affected thereby.
With the taking effect of these terms and conditions of delivery and payment as of 06/2013, all previous terms and conditions of delivery and payment shall cease to be valid.