Terms & Conditions
1. Scope of Application
The following Terms and Conditions shall apply to all contracts concluded within the framework of our commercial transactions. They shall replace all and any previous versions. Any diverging General Terms and Conditions of our contract partners and other agreements shall only apply where they are confirmed in writing by one of our representatives or authorised employees.
2. Conclusion and Scope of Contract
Our offers are non-binding. Orders will become legally binding only upon our written confirmation thereof or upon delivery. Where a customer’s solvency deteriorates during the time between receipt of the order confirmation and delivery of the goods, or where other reservations against the customer’s solvency become subsequently known to us, we shall be entitled to rescind previously agreed upon payment terms and to demand earlier payment, to withhold pending deliveries or to withdraw from the contract. However, the customer shall be entitled to discharge such consequences by providing security.
Our prices exclude value-added tax which shall be added according to the current statutory rate. They are quoted ex works (EXW), packaging extra. Our prices are determined by the respective contracts, subsidiarily, under the price list valid upon placing the order. Where our subcontractors unexpectedly raise their prices to an extra-ordinary amount or in the event of currency fluctuations, we are entitled to pass on such an increase to our customers. Where our increase exceeds 5 % of the purchase price, the customer shall be entitled to cancel the contract.
4. Payment Terms
Initial deliveries to new customers require payment in advance. With respect to follow-up deliveries, payment shall become due upon delivery. Unless there are no further due claims, payment shall be effected no later than 7 days from date of invoice less a 2 per cent cash discount, or within 14 days strictly net. Payment must be effected at the latest 28 days from date of delivery.
In the event of unjustified cash discounts a handling fee of € 5,00 shall be charged. The same applies to each payment reminder following the initial reminder.
Where a customer defaults in payment, we shall be entitled to demand interest on the unpaid balance to the value of 10 % points above the respectively valid basic interest rate (Basiszinsatz).The right to assert further damages due to default in delivery remains unaffected. Where a customer proves that there is no damage, or a lower damage, resulting from the default, our claims in default are restricted to the statutory amount.
In the event that a customer defaults in payment or in other cases of apparent credit-unworthiness, all remaining claims against the customer shall become payable in full immediately. Customer’s retentions or set-offs shall only be allowed where the customer’s claim is non-disputed or has become unappealable.
5. Passing of Risk
The risk shall pass to the customer upon handover to the carrier at the latest.
6. Terms of Delivery
We are entitled to perform partial deliveries where no exceptional circumstances render such partial deliveries unacceptable to the customer.
The customer shall carry all costs of transportation. Wherever we default a delivery deadline, the customer, upon expiry of an appropriate grace period of at least two weeks, shall be entitled to withdraw from the contract. The customer will not return any kind of packaging material to us. Moreover, he shall ensure that all transport packaging received from us will be reused or recycled in compliance with the requirements of section 4, subsection 2 of the German Packaging Regulation (VerpackungsVO). The customer assumes responsibility that any packaging received from us either be reused pursuant to Appendix I, No 1 of the Packaging Regulation in compliance with Appendix I, No 2 of the Packaging Regulation, or he shall take part in a system pursuant to section 6, subsection 3 of the Packaging Regulation (eg Dual System Germany – “Grüner Punkt”). Where local authorities or competitors assert claims against us due to customer’s default of said duties, the customer shall bear all costs resulting from such default.
7. Reservation of Title
Goods delivered by us shall remain our property until customer’s payment in full of all balances owed. We shall be entitled without any grace period and without prior withdrawal from the contract, to demand return of the goods where the customer has defaulted on one of his obligations arising from our business relations. Taking back of such goods shall only be deemed a withdrawal from the contract upon our express written declaration. The customer shall bear all costs resulting from such taking back. Upon unsuccessful warning, we shall be entitled to resell such returned goods and to set off the resulting sales revenues against our claims.
The customer shall be entitled to sell the goods in the ordinary course of his business. As a security, the customer hereby assigns to us all claims arising from his sale of goods subject to title reservation in proportion to our property rights in said goods. In this context, any assignment by the customer to third parties including those within the framework of factoring transactions, is inadmissible.
The customer shall at his costs insure all goods subject to title of reservation against the usual storing risks. He hereby assigns to us his claims arising under such insurance policies. At our request, the customer shall hand over such policies to us.
In case of indications that the realization of our claims might be in danger, the customer shall, upon our request, disclose to his customers the assignments, and shall provide us with all necessary documentation and information. Customer shall notify us of any third party attachment or other action against goods subject to title of reservation immediately after taking notice thereof. The customer will be liable for all costs arising in connection with efforts to lift such third party attachments, or other action, in particular costs connected to a third party action against execution (“Drittwiderspruchsklage”), in so far as costs cannot be recovered from the respective third party.
Customer shall examine the goods delivered with regard to defects immediately upon receipt of the goods. Complaints will only be considered where made in writing and with corresponding proof no later than 5 working days following delivery. Hidden defects are to be notified in the same manner no later than 5 days from discovery.
Warranty will be effected, at our discretion, either by remedy of the defect or by replacing the goods. Where our choice of re-fulfilment would impose substantial disadvantages on the customer, he shall have the right to choose a different way of re-fulfilment.
In the event that no attempt to re-fulfil is made within a reasonable grace period of at least two weeks stated by the customer, or where such a deadline is unnecessary under the law, the customer shall be entitled to assert other warranty claims, in particular, to reduce the purchase price or to withdraw from the contract. Where an attempt to re-fulfil the contract was made in time, but remained unsuccessful, the customer must grant a further reasonable grace period before he will be entitled to assert such other warranty claims, provided that no particular circumstances render such a further grace period unacceptable for him. Damages arising out of defects may only be asserted under the provisions of No 9. Where efforts are made following unjustified notifications of alleged defects, we will charge the customer with all costs arising in accordance with the current price list for repairs. There is no right to exchange. All and any claims in respect of defects prescribe two years after delivery. This does not effect any customer’s claims against manufacturers resulting from a manufacturer’s liability; however, for such claims we do not assume any liability. Customer’s right of recourse pursuant to section 478 BGB (German Civil Code) shall remain unaffected where the customer is not entitled to compensation of a equal value. This does not apply to claims for damages arising from defects.
Liability for violations of duty shall occur in cases of intent or gross negligence only. Such limitation of liability shall not take effect where we have assumed a guarantee, with respect to damages under the Product Liability Act, or with respect to injuries to body, health and life, or in the event of violation of a material contractual duty that endangers the purpose of the contract. Where we are liable for simple or gross negligence, our liability is limited to the kind and extent of damage typically foreseeable under the circumstances. Where we are liable for simple negligence, or for gross negligence committed by our staff other than our managing directors or executives, our liability is excluded for indirect damage, consequential damage or loss of profits. Customer shall have to furnish proof for any negligence.
10. Storage of Data
Customer agrees to the storage of personal and business related data that is necessary for our administrative work. At customer’s request, we will provide information on the stored data.
11. Place of Performance, Competent Courts, Applicable Law
Place of performance for all contractual duties shall be at our registered seat. All and any disputes arising from the business relation where we appear as plaintiff, shall, at our discretion, be resolved either through the state courts of Hamburg or, under the exclusion of the state courts, through binding arbitration before a panel created under the Hamburg Friendly Arbitrage. Place of Arbitration shall be Hamburg, the official language of proceedings German. Where our contractual partner intends to sue us, prior to litigation, we shall be asked in writing to choose within a period of two weeks between the above-mentioned state courts or arbitration. Where we fail to choose in time, the competence of the state courts shall be deemed agreed upon. These General Terms and Conditions as well as our entire legal relations with our contractual partners are subject to German law, excluding the provisions of the UN Convention on the International Sale of Goods (CISG). In the event that payment is to be made against documentary letter of credit, the relevant provisions of the International Chamber of Commerce (ICC) in Paris shall also apply in their current version.