Terms of trade (English version not valid for Germany)
1. Applicable Conditions and Scope of Application
1.1 Our supplies and services are exclusively subject to the following General Terms and Conditions. Our commercial representatives are not authorized to agree on modifications unless in writing.
1.2 Any conditions of the Customer shall apply only if and to the extent to which we have expressly consented thereto in writing.
2. Information and Advice, Documentation
2.1 Any advice and information provided on our products is based on our experience to date. The data, in particular concerning the possibilities of use of our products, are average data only and do not represent quality descriptions of the products. We are unable to assume any liability as to the exact correctness of the data and the possibilities of use. As far as the Customer is entitled to damages notwithstanding this provision, clause 7 shall apply.
2.2 Any document and object, such as drawings, samples or models, made available to the Customer in connection with our offers, remain our property. We are the holder of copyrights and related protective rights within the meaning of the German Copyright Act (Urheberrechtsgesetz) regarding these documents and objects. The Customer is not entitled to disclose to third parties the documents made available without our prior written consent.
3. Conclusion and Content of Contract
3.1 Our offers are not binding. A contract for delivery shall be concluded only upon either our written confirmation of the Customer’s order or, where no such confirmation is given, the delivery of the goods. The contents of the contract shall be determined by our written confirmation, in case of delivery without prior confirmation, our delivery note shall be deemed such written confirmation. Oral statements are not binding under any circumstances.
3.2 Any information provided on our products, in particular, pictures or drawings or information concerning quality, quantity, weight, colour, measure and performance enclosed in our offers are approximate data only and no quality descriptions. As far as permissible deviations are neither stipulated in the order confirmation nor expressly accepted as stated in the Customers specification, deviations customary in the industry are admissible in any case. The composition, suitability, qualification, function and purpose of our products are exclusively determined by our specifications and technical qualifications. Public statements, laudations or advertising by third parties do not represent a quality description of the product.
3.3 Guarantees regarding qualities or shelf life of our products must be expressly declared as such in the order confirmation. The quality of models and samples delivered is not warranted unless expressly stated otherwise in the order confirmation. This shall also apply to data concerning the result of analyses.
4. Delivery and Passing of Risk
4.1 Where delivery dates or times are not expressly declared as fixed in our written order confirmation but regarded as estimates, the Customer may set a reasonable time limit for delivery two weeks after expiry of the delivery dates or times. We are only in default after expiration of such final time limit. However, no such period starts running before the Customer has provided all the documents for which he bears responsibility, such as licences or the release of drawings, and agreed advancements have been received.
4.2 In case of default or impossibility of performance we are liable for claims for damages exclusively pursuant to the provisions in clause 7 below. Our liability for damages caused by default is limited to 0.5 % per completed week of the value of the delivery or partial delivery that is in default. Our maximum liability for damages caused by default is limited to 5 % of the value of the (partial) delivery in default. This restriction does not apply to wilful acts, and injuries suffered by the Customer to his life, body or health.
4.3 In case of force majeure, for example operational disturbances, delay in transportation, measures taken in the course of industrial action, in particular strike and lockout, and in cases of non-delivery, incorrect or delayed delivery by our own suppliers, irrespective of its cause (reservation of self-supply), and in any other case of insufficient performances for which we are not responsible, we shall be entitled to extend the delivery period for the duration of the obstruction and for a reasonable period thereafter to reinstate works. If it is foreseeable that the inability to perform will be of permanent nature, we are entitled to refuse the delivery completely or in part. In that case the Customer is not entitled to any damage claims. He is no longer obliged to fulfil his contractually agreed counter-performance, and any advance payments will be returned.
4.4 We are entitled to make partial deliveries.
4.5 If delivery upon request is agreed upon, the respective requests must be placed within three months after availability of the products, unless otherwise agreed upon in writing. In case the Customer does not request delivery within the specified time, clause 4.7 shall apply accordingly.
4.6 All sales are ex factory Germany. Shipment and transport are always at the Customers own risk. Risk of loss or damage, albeit partial deliveries, shall pass to the Customer as soon as the shipment is handed over to the carrier, irrespective of the carriers affiliation with us, or leaves the factory for shipment, unless clause 4.7 below is applicable.
4.7 If the Customer refuses acceptance of the goods or if shipment is delayed for reasons which the Customer is responsible, the risk shall pass when his default in acceptance commences. Any storage costs incurred after the risk has passed shall be payable by the Customer. We are entitled to charge either a lump sum of 0.5 % of the invoice amount per month as storage costs or the damage actually suffered, unless the Customer proves lesser damage. In addition, we are entitled to set the Customer a final period of 14 days and to rescind the contract or claim damages for non-fulfilment if this period lapses without acceptance of the goods by the Customer.
5.1 Our prices include standard packaging but not the applicable statutory value added tax.
5.2 The Customer pays for the shipment of the goods. Freight charges, tariffs and other fees resulting from shipment are applicable as in effect at the day of delivery.
5.3 The Customer is not entitled to make any deductions from amounts due to us due to any counterclaims or to exercise a right of retention, unless the counterclaims or the right of retention have been acknowledged by us in writing or declared valid with final effect in a judicial proceeding.
5.4 Payment of our invoices is due within 10 days from the invoice date. The Customer is in default, if this period lapses without payment.
5.5 If the Customer is in default with any payments due, we are entitled to interest at 8 percentage points p.a. above the base-lending rate of the Deutsche Bundesbank, unless a higher or lower damage is proven.
5.6 If the Customer is in grave breach of contract, any outstanding payments fall immediately due irrespective of the term of any bills of exchange we accepted in fulfilment. In case of default, bill protest, and suspension of payment by the Customer we can demand immediate payment of all debts including debts resulting from current bills of exchange regardless of the stipulated due date. The same applies if we come to know any circumstances which cause reasonable and considerable doubt about solvency or credit-worthiness of the Customer, even if these circumstances existed at the time of order, whilst we neither knew nor had to know of them. Under all such conditions we are also entitled to demand advance payment or security for any outstanding orders, and to recede without setting a further deadline if the advance payment or security is not provided within two weeks. Further claims remain unaffected.
5.7 The Customer may not cede any claims resulting from this contract to a third party without our prior written consent.
6. Retention of Title
6.1 All goods delivered shall remain our sole property (“Vorbehaltsware” – separate goods) until complete payment by the Customer of all amounts owed from the business relationship.
6.2 Processing and transformation of the separate goods is made for us as manufacturer (Hersteller) in the sense of sec. 950 German Civil Code (BGB), without obligation to us. Processed and transformed goods are deemed to be separate goods within the meaning of clause 6.1 above. In case of processing and transformation, combining and intermixture of the separate goods by the Customer with goods of other origin to a new product or to an intermixed stock, respectively, we become co-owner of it, namely in the ratio of the invoiced amount of the separate goods at the time of delivery to the value of the other processed or the intermixed goods, respectively. The co-ownership share is held as separate goods within the meaning of clause 6.1 above.
6.3 If separate goods are connected with other goods and if goods belonging to the Customer are to be regarded as the principal good within the meaning of sec. 947 German Civil Code, it is hereby agreed that the co-ownership share is transferred to us in the ratio of the invoiced amount of the separate goods to the value of the principal good and that the Customer holds the goods in safe custody for us free of charge. The co-ownership share is held as separate good within the meaning of clause 6.1 above.
6.4 The Customer shall hold the separate goods in safe custody. At any time and upon our request the opportunity of stocktaking and stock marking at the warehouse must be given. The Customer shall notify us immediately of any seizure or other interference of third parties with respect to our property rights and will provide us with all documents and information necessary to oppose such interference with all legal means.
6.5 The Customer is entitled to resell the separate goods exclusively within the ordinary course of business according to his usual conditions provided that he also ensures retention of title as stipulated above and if it is ensured that his claims arising from the resale pursuant to clauses
6.6 through 6.8 below are transferred to us. 6.6 The Customer hereby assigns to us all claims he acquires against his buyers through the resale of separate goods, also within the scope of contracts for work and contracts for delivery of work, with all subsidiary rights. The assigned claims shall function as security for our claims to the same extent as the separate goods. The Customer is only authorised to assign claims to third parties with our prior written consent.
6.7 If the Customer sells the separate goods together with other goods not supplied by us, the claim following from such sale shall only be assigned to us up to the amount invoiced by us for the respective separate goods at the time of delivery. For the resale of goods, for which we become co-owners pursuant to clause 6.2 or clause 6.3, respectively, the assignment of claims is valid up to the amount of the co-ownership share.
6.8 If the assigned claim is taken into a current account, the Customer hereby assigns to us a corresponding part of the balance of such account, including a deficit balance.
6.9 The Customer is authorised to collect the claims assigned to us pursuant to clauses 6.5 through 6.7 above on our behalf until revocation of this right by us.
6.10 If the Customer does not fulfil his obligations under this or any other contract with us or if we come to know any circumstances which cast doubt on the Customers creditworthiness, – we are entitled to prohibit the resale, the processing and transformation of the separate goods as well as the combination and intermixture with other goods; – upon our request the Customer shall provide us with the names of the debtors of all claims assigned to us to enable us to disclose the assignments and collect these claims; the Customer shall forward to us any payments he receives on claims assigned to us immediately upon receipt if and as soon as our claims against the Customer become due; – we are entitled to revoke the Customers right to collect the claims assigned to us on our behalf.
6.11 If the value of the security provided to us exceeds the aggregate of our secured claims by more than 20 %, we are under an obligation to release security of our choice to this extent at the request of the Customer.
7.1 The Customer shall diligently examine the goods immediately upon receipt at the place of destination, albeit prior delivery of models or samples. In particular, the goods are to be examined with respect to their external quality. If no acceptance report is carried out, the goods are deemed to have been fictitiously accepted. If boxes, cartons or other containers are delivered, samples have to be taken at random. The goods shall be deemed to be accepted, unless the Customer notifies us of any defect within ten (10) days after receipt of the goods at the place of destination or, in case of hidden defects, within ten (10) days after the defect was discovered in writing or by fax specifying the defect. This shall not apply where we can be accused of fraudulent intent. All such notifications of defects of goods must be addressed to us directly.
7.2 Any damages to goods in transit have to be notified immediately to the forwarding agent; the notification obligations pursuant to the German General Conditions for Forwarders (Allgemeine Deutschen Speditionsbedingungen) shall apply.
7.3 Upon justified and timely notice of claims we may provide supplementary performance through removal of the defect or replacement of the delivered goods at our own choice.
7.4 If supplementary performance does not remedy the defect, the Customer may demand a reduction in the purchase price or rescission of contract. In the case of minor defects, the Customer is not entitled to rescission of contract.
7.5 In case the Customer receives a defective instruction sheet, we are obliged to deliver a sufficient instruction sheet only and only so, if the defect of the instruction sheet prevents from a proper installation.
7.6 The provisions above contain the final and complete warranty for our goods. For any further claims resulting from or in connection with the delivery of defective goods, irrespective of their legal basis, we can only be held liable pursuant to clauses 7.7 and 7.8 below.
7.7 For any claims based on misconduct, irrespective of their legal basis, e.g. default, delivery of defective goods, violation of contractual duties, violation of duties during contractual negotiations, torts, product liability (with the exception of the liability under the German Product Liability Act, “Produkthaftungsgesetz”), we can be held liable for damages in case of a wilful act or gross negligence only. We are not liable for negligent conduct of a minor degree, unless the contractual purpose is thereby substantially endangered. In any event, our liability shall be limited to foreseeable and typical damages. This restriction does not apply to injuries suffered by the Customer to his life, body or health. Personal liability on the part of our statutory representatives, persons engaged in performance of our contractual obligations or employees for damage caused by their negligent conduct of a minor degree is excluded.
7.8 Before submitting claims against us the Customer has to pursue all possible claims against our suppliers. For this purpose we commit to cede our claims against out suppliers. The Customero bligation includes filing suit. Upon unsuccessful pursuit of the third-party claim the Customer is entitled to submit his claims against us according to clauses 7.7,
7.9 Warranty claims of a business Customer shall become time-barred one year, private Customer shall become time-barred two years after delivery of the goods or hand-over of the ship, respectively, and five years for buildings or building materials and parts causing their defectiveness. The Customer rights to replacement shall become time-barred one year after delivery of the goods. This shall not apply where we can be accused of fraudulent intent.
7.10 Agreements between the Customer and his Customers beyond the statutory warranty claims shall have no affect to our disadvantage.
8. Applicable Law/Jurisdiction
8.1 The relations between us and the Customer are governed by the laws of the Federal Republic of Germany (Architecture via HOAI.) Neither the UN-treaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into German law, shall be applicable. 8.2 Court of jurisdiction for all disputes arising from or in connection with the contract shall be at our choice either Hamburg/Germany or the company seat of the Customer; for lawsuits filed by the Customer, exclusively Hamburg. Any statutory provisions regarding exclusive jurisdiction remain unaffected. The agreement on jurisdiction does only apply to Customers, who are traders.