General Conditions of Sale
1. General - Scope
- (1) All deliveries and offers of the Seller are subject to these General Conditions of Sale. They are an integral part of all contracts that the Seller concludes with his contractual partners (hereinafter referred to also as “Buyer”) about the deliveries offered by the Seller. They also apply to all future deliveries or offers to the Buyers even, if they are not separately agreed again.
- (2) The conditions of sale apply exclusively; contradicting or deviating conditions of sales of the Buyer will not be accepted unless the Seller expressly consents to their application in writing. The conditions of sale also apply, even if the Seller supplies the Buyer without reservation after having been informed of Buyer`s conditions contradicting or deviating from the conditions of sales.
- (1) All offers by the Seller are non-binding until acceptance, unless they are explicitly marked as binding or contain specific terms of acceptance. The Seller can accept orders or contracts of the Buyer within 14 days from receipt. All offers or acceptance of orders take place subject to supply of the Seller itself and availability of products.
- (2) Additions and modifications to agreements made, including these General Conditions of Sale, are effective only in writing. With the exception of directors or authorized signatories, the Seller's employees are not entitled to make verbal agreements differing from written agreements. Confirmation by telecommunication is sufficient to meet the requirement of the written form.
3. Prices, Terms of Payment
- (1) Invoices shall be payable within 10 days with 2% discount or thirty days without any deduction, unless otherwise agreed in writing. Decisive for the date of payment is the receipt of the payment. Cheques or bills count as payment only after they have been finally cashed.
- (2) The Buyer shall have the right to offset only if his counter-claims are legally determined, undisputed or acknowledged by the Seller. In addition, he is authorized to exercise a right of retention only to the extent that his counter-claim is based on the same contractual relationship.
- (1) Unless otherwise agreed, all deliveries are ex domestic warehouse of the Seller. Shipping is carried out at the risk and expense of the Buyer. Delivery will be made uninsured; it is up to the Buyer to arrange for transport insurance.
- (2) Terms and deadlines announced by the Seller in advance are always only approximate unless a fixed term or a fixed deadline is expressly promised or agreed. If shipping has been agreed, delivery dates and deadlines refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods. Except as otherwise expressly stipulated in writing, agreed delivery dates and deadlines shall not be considered a commercial fixed-date transaction.
- (3) The Seller shall not be liable for impossibility of delivery or for delays in delivery, if these are caused by force majeure or other events unforeseeable at the time the agreement was signed (e.g. operational disruptions of all kinds, problems in obtaining materials or energy, transportation delays, strikes, lawful lockouts, shortage of labor, of energy or of raw materials, difficulties in acquiring the necessary permits, official measures or non-delivery or incorrect or late delivery by suppliers) for which the Seller is not responsible.
- (4) If the Buyer is in default upon acceptance of the purchased objects or should he culpably breach other obligations to cooperate, the Seller shall be entitled to demand compensation for damages arising thereby including any additional expenses. If the Seller still possesses the goods, he shall be entitled to sell them for the Buyer's account after the expiry of a reasonable grace period set for the Buyer; the Buyer shall be liable towards the Seller for any losses, damages and costs arising thereby.
5. Defects, Warranty
- (1) Details provided by the Seller relating to the subject matter of the delivery (e.g. weights, dimensions, usage values, load capacities, tolerances and technical specifications) and presentations of the same (e.g. drawings and illustrations) are deemed to be only approximate unless the use for the purpose intended by the contract requires a precise conformity. They are not guaranteed characteristics but rather descriptions or designations of the delivery or service. Variations and discrepancies that are usual in the trade, which ensue from statutory provisions or constitute technical improvements, as well as replacement of component parts by parts of the same standard, are permissible, unless they adversely affect the use for the purposes intended by the contract. Should the order be submitted based on a concrete offer pattern, the quality standards thereof apply in tolerances customary in the trade unless the use for the purpose intended by the contract requires a precise conformity.
- (2) For the warranty rights of the Buyer to be recognized, he must have duly met his obligations regarding inspection and notification of objections which are required in accordance with § 377 of the Handelsgesetzbuch (Commercial Code). Complaints due to obvious defects shall be made in writing within seven working days from the delivery of the goods at the place of destination, while complaints due to hidden defects should be made in writing immediately after detection.
- (3) In case of defects in the purchase goods, the Seller is, at its discretion, entitled and obliged to choose whether to repair or replace. In the event that the subsequent performance is unsuccessful, the Buyer shall be entitled to demand withdrawal from the contract or reduced payment.
- (4) Warranty period is one year counting from the date of transfer of risks. This is a statutory period of limitation that also applies for compensation claims due to consequential damages caused by defects, providing no claims arising from unlawful acts are made.
- (1) The liability of the Seller for damages, regardless of legal grounds, especially due to impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and unlawful acts, insofar as it is at fault in all cases, is limited according to this section 6.
- (2) The Seller shall not be liable in the case of ordinary negligence of its organs, legal representatives, employees or other vicarious agents, inasmuch as it does not concern a breach of duties that are essential for the proper performance of the contract. Essential for the contract are all those obligations, the fulfilment of which is a prerequisite for enabling the proper fulfilment of the contract in the first place and in which the contracting partner may normally trust. These include the commitment to a timely delivery and, if applicable, installation of the delivery item, freedom from defects that affect its functionality or usability more than just insignificantly, as well as the duty to provide appropriate advise, to protect and to exercise proper care, thereby making it possible for the Buyer to use the delivery item as envisaged in the contract, or to protect the life or physical condition of the Buyer's staff or to protect his property from substantial damages.
- (3) Insofar as the Seller is liable for damages on the grounds of and in accordance with (2), this liability is limited to damages that the Seller has foreseen when concluding the contract as a possible consequence of a contractual infringement or that the Seller should have foreseen by applying due care and attention. Indirect damages and consequential damages resulting from defects in the item supplied shall only be eligible for compensation insofar as such damages can be typically expected from the normal use of the contract use.
- (4) The aforesaid non-liability and liability limitations also apply to the same extent for the organs, legal representatives, employees or other vicarious agents of the Seller.
- (5) The limitations of this section 6 and of section 5 (4) do not apply to the liability of the Seller of deliberate conduct or gross negligence, for guaranteed quality features, injury to life, body or health or under the Product Liability Act.
7. Retention of Title
- (1) The Seller retains ownership of the purchased items until the receipt of all payments under the business relation with the Buyer. If the Seller agrees with the Buyer that payment be made by cheque-bill of exchange transaction, retention of title extends to the time when the bill of exchange accepted by the Seller has been cashed by the Buyer and does not expire when the Seller credits the cheque received.
- (2) The Buyer is obligated to store and handle with care the purchase items for the Seller free of charge, as long as they are the property of the Seller; in particular, he is obligated to insure them adequately at his own cost at the original value against damage by fire, water and theft.
- (3) Pledging or collateral assignments are not permitted. In case of seizure or other interventions by third parties, the Buyer must immediately notify the Seller in writing so that Seller can claim according to § 771 of the Zivilprozessordnung (Code of Civil Procedure, the “ZPO”). Unless the third party can reimburse the Seller the judicial and extra-judicial costs for the legal action in accordance to § 771 ZPO, the Buyer shall be liable the Seller for the default.
- (4) If the goods are processed by the Buyer, it is agreed that the processing will be effected on behalf and on the account of the Seller as manufacturer and the Seller will immediately acquire ownership or - when the processing is effected with goods of several owners or the value of the processed goods is higher than the value of the of the goods under retention of title- co-ownership (fractional ownership) of the newly created item in proportion to the value of the goods under retention of title to the value of the newly created item. In the event that no such acquisition of ownership occurs by the Seller, the Buyer transfers already now his future ownership or - in the aforementioned ratio - his co-ownership in the newly created item to the Seller for reasons of security If the goods under retention of title are combined with other goods to form a uniform item or mixed inseparably, the aforementioned provisions of sentence 1 and 2 apply analogously. If in such event of combination or mixing one of the other goods can be regarded as the main good, the Seller shall assign, to the extent that the main good belongs to the Seller, to the Buyer the prorated co-ownership in the uniform item in the ratio specified in sentence 1.
- (5) Until revocation, the Buyer is entitled to resell the purchase items in the ordinary course of business; he assigns to the Seller all claims in the total amount of the invoice (including VAT) -in case of co-ownership of the Seller according to (4) of the goods under retention of title in proportion to the co-ownership share- accruing to him from the resale to its customers or third parties. If the Buyer sells the claim within the framework of genuine factoring, the Buyer shall assign the substitute entitlements to payment against the factor to the Seller and shall forward, pro rata to the value of the Seller’s rights, his sales earnings to the Seller without delay. Assigned are also other claims that take the place of purchase items or arise otherwise with regard to the purchased items such as insurance claims or claims from unlawful acts in case of loss or damage. Until revocation, the Buyer is entitled to collect these claims also after assignment thereof. The authority of the Seller to collect the claims himself remains unaffected thereby. The Seller, however, shall not undertake to collect the claim as long as the Buyer's payment obligations to the Seller are not in default, no application has been filed for the opening of insolvency proceedings and the Buyer does not stop payments. Otherwise, the Seller can demand from the Buyer to disclose to him the assigned claims and the respective debtors, to provide him with all information required for collection, to hand over to him the corresponding documents, and to notify his debtors (third parties) about the assignment.
- (6) The Seller agrees to release the securities to which he is entitled, if the value of the securities exceeds the secured claims; it is the Seller’s right to choose the securities to be released.
8. Place of Performance, Jurisdiction and Applicable Law
- (1) If the Buyer is a merchant, jurisdiction is Hamburg.
- (2) The place of performance is Norderstedt.
- (3) The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 is excluded.