General Terms and Conditions of Sale
(Date: 25 August 2003)
§ 1 General – Scope
1. All agreements made between us and the Buyer for the purpose of the performance of this Agreement are set down in writing in this Agreement.
2. Our Terms and Conditions of Sale apply only to dealings with businesses within the meaning of Section 310 (1) German Civil Code (BGB).
3. Our Terms and Conditions of Sale apply to all present and future business relations with the Buyer.
§ 2 Formation of the contract
1. Our offers shall not be binding.
2. If the order is to be classed as an offer pursuant to Section 145 BGB, it is considered as accepted only if confirmed by us by letter, by fax / telex or e-mail, by delivery of goods or by transmission of our invoice.
3. Unless otherwise specified in these Terms and Conditions of Sale or in our order confirmation, INCO-TERMS shall apply in the version applicable at the time the contract was formed.
4. The contract will be subject to the correct and timely delivery by our suppliers. This reservation applies only in the event that we are not responsible for the failure to deliver, in particular in the event of conclu-sion of a simultaneous covering transaction with our supplier. The Buyer will be informed of the non-availability of the goods or services without undue delay. Any consideration effected will be refunded with-out undue delay.
§ 3 Prices – Terms of payment
1. In the absence of any contrary stipulation in the order confirmation, our prices shall be quoted in EURO and apply "ex warehouse“, including package.
We reserve the right to amend our prices if costs increase or decrease after the conclusion of
the contract, in particular due to statutory, regulatory or other reasons, such as export or import duties, tolls, payments of a surplus, taxes, costs of carriage and storage, insurance rates, etc.. We will provide evidence of such to the Buyer upon request.
2. Our prices do not include statutory value added tax (VAT); this will be shown as a separate item on the invoice at the statutory rate on the invoice date.
3. In the absence of any other stipulation in the order confirmation, the purchase price shall be payable net (without deductions) after reception of our invoice. The statutory provisions concerning the consequences of late payment shall apply.
4. Acceptance of bills of exchange require a special agreement. Bills of exchange and cheques shall only be accepted under reserve of discharge/ encashment and shall only be regarded as payment once the bill / cheque has successfully been honoured by the drawee.
5. The Buyer shall only be entitled to exercise a right of setoff if its counterclaims have been confirmed by a non-appealable court decision, are uncontested or have been acknowledged by us. It shall only be entitled to exercise a retaining lien so far as its counterclaim arises from the same contractual relationship.
§ 4 Weights
1. The weights which are asserted at the place of dispatch according to custom and usage are binding. For import products the Shippers invoice weights shall be authoritative. The annex of phrases such as “circa” or “approximately” or alike entitles us to changes in the stipulated amount of delivery up to 10% up- and downwards.
2. Changes in the nature of goods or package are admissible if to be considered minor with regard to the conclusion of the contract in good faith.
§ 5 Delivery period
1. The delivery period stated by us shall not start to run until all technical issues have been clarified.
2. Compliance with our delivery obligation is also conditional upon the timely and proper fulfilment of the obligations of the Buyer. We also reserve the right to plead the defences of failure to perform the contract and insecurity (Section 321 BGB).
3. Should the Buyer be late in accepting delivery or should it be in culpable breach of its other duties to co-operate, we are entitled to demand compensation for any losses we thereby incur, including any additional expenses. We reserve the right to assert additional claims.
4. So far as the circumstances referred to under paragraph (3) arise, the risk of accidental loss or accidental deterioration of the purchase item shall pass to the Buyer at the time at which acceptance or payment is owed.
5. All occurrences of force majeure, for which we are not responsible pursuant to Section 276 BGB, shall release us from the duty to perform our contractual obligations for the duration of these occurrences. We are obliged to inform the Buyer immediately if such an occurrence arises; at the same time we are obliged to inform the Buyer of the probable duration of such an occurrence. Should such an occurrence last longer than two months, we may rescind the contract. Any consideration effected will be refunded without delay.
6. We shall be liable in accordance with the statutory provisions, so far as the underlying sales contract is a transaction at a fixed date (“Fixgeschaeft”) within the meaning of Section 286 (2) No. 1 BGB or Section 376 German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions so far as the Buyer is entitled to claim that it no longer has an interest in the further performance of the contract as a consequence of a delivery delay for which we are responsible.
7. We are further liable in accordance with the statutory provisions so far as the delivery delay is due to an intentional or grossly negligent breach of contract for which we are responsible; culpability on the part of our representatives or vicarious agents is to be considered our culpability. So far as the delivery delay is not due to an intentional breach of contract for which we are responsible, our liability to pay damages shall be limited to the foreseeable loss which is typical of the type of contract concerned.
8. We shall also be liable in accordance with the statutory provisions so far as the delivery delay for which we are responsible is due to the culpable breach of a material contractual duty; in this case, however, our li-ability to pay damages shall be limited to the foreseeable loss which is typical of the type of contract con-cerned.
9. In other respects, in the event of delayed delivery we shall be liable to pay as liquidated damages for each full week of delay an amount equal to 0.5% of the value of the contract, but not exceeding 5% of the value of the contract in total.
10. The above provisions shall not affect the right of the Buyer to enforce other statutory claims and rights.
§ 6 Bearing of the Risk – Packaging Costs
1. In the absence of any contrary stipulation in the order confirmation, delivery shall be "ex warehouse“.
2. We will not take back transport packaging or any other packaging pursuant to the German Packaging Regulation, with the exception of pallets. The Buyer is obliged to dispose of the packaging at its own ex-pense.
3. If goods are shipped to a place of performance at the instruction of the Buyer (Versendungskauf) we are also entitled to dispatch them from a place other than the place of performance. If required by the Buyer, we will take out transport insurance to cover the delivery; the costs of such insurance shall be borne by the Buyer.
§ 7 Warranty
1. Warranty claims of the Buyer are conditional upon the Buyer having duly complied with its obligation pur-suant to Section 377 HGB to inspect the goods and notify the supplier of any defect. In case of frozen goods the Buyer shall defrost a reasonable number of probes for examination. The examination shall cover all essential quality characteristics of processing, also such being canvassed by the examination au-thorities for imports.
2. If the purchased item contains a defect, we shall be entitled to choose whether to repair it or to supply a new, defect-free item. If we repair the defect, we are obliged to pay the full costs of repair, in particular the costs of transport, labour and materials, so far as these are not increased by the purchased item being in a place other than the place of performance.
3. Should the attempt to repair or replace the defective item fail, the Buyer is entitled at its discretion to de-mand rescission of the contract or reduction of the purchase price. However, if the items only deviate from the contractual requirements to a minor extent, in particular in the event of minor defects, the Buyer shall have no right of rescission.
4. In the event that the Buyer asserts claims for damages which are based on intentional wrongdoing or gross negligence, including the intentional wrongdoing or gross negligence of our representatives or vi-carious agents, our liability shall be governed by the statutory provisions. So far as there is no question of an intentional breach of contract on our part, our liability to pay damages shall be limited to the foresee-able loss which is typical of the type of contract concerned.
5. In the event that we culpably breach a material duty of the contract, we shall be liable in accordance with the statutory provisions; in this case, however, the liability to pay damages shall be limited to the foresee-able loss which is typical of the type of contract concerned.
6. Our liability in respect of culpable injury to life, limb or health shall remain unaffected; this also applies to the mandatory liability under the provisions of the German Product Liability Act (“Produkthaftungsgesetz”).
7. In the absence of any contrary stipulation above, liability shall be excluded.
8. The period of limitations for claims under warranty shall be 12 months, starting from the time at which risk passes.
9. The period of limitation in the case of recourse being taken against the supplier pursuant to Sections 478, 479 BGB remains unaffected; this shall be five years, starting from the time of delivery of the defective item.
§ 8 General Limitation of Liability
1. All liability to pay damages above and beyond that provided for in Clause 7 shall be excluded, irrespective of the legal nature of the claim being asserted. This applies in particular to claims for damages arising from “culpa in contrahendo” (negligence in the course of contracting) or for reason of other breaches of duty, and to claims under tort for damage to property pursuant to Section 823 BGB.
2. So far as our liability for damages is excluded or limited, this also applies in respect of the personal liability for damages of our employees, representatives and vicarious agents.
§ 9 Retention of Title
1. We reserve the right to retain title to the purchased item until we have received payment in full of all claims arising from the business relationship with the Buyer. If the Buyer is in breach of contract, in particular if it is late in making payments, we are entitled, after granting a reasonable additional period for compliance, to take the purchased item back. The act of taking back the goods constitutes a rescission of the contract. After we take back the goods we are entitled to sell them, whereby the proceeds from sale shall be offset against the amount owed by the Buyer – less reasonable handling costs.
2. The Buyer is obliged to treat the purchased item with care; in particular it is obliged to insure it to replace-ment value at its own expense against fire, flood and theft. As far as works of maintenance and inspection become necessary, the Buyer duly has to arrange them on its own costs.
3. In the event of a levying of distraint or other third party intervention, the Buyer must notify us in writing without undue delay, so that we can file suit pursuant to Section 771 German Code of Civil Procedure (ZPO). So far as the third party is unable to refund us the court costs and out-of-court expenses of legal action pursuant to Section 771 ZPO, the Buyer shall be liable for any resultant shortfall.
4. The Buyer is entitled to resell the purchase item within its usual course of business; however, it hereby assigns to us all debts owed to it by its customer or third party from the resale, up to the amount of the fi-nal invoice sum (including VAT) of our claim, irrespective of whether the purchased item has been resold in its original condition or after further processing. The Buyer remains authorised to collect this debt even after it has been assigned. This shall not affect our right to collect the debt ourselves. However, we under-take not to collect the debt provided that the Buyer complies with its payment obligations from the reve-nues collected, is not late with its payments, does not discontinue payments and, in particular, does not have an application for the institution of bankruptcy, composition or insolvency proceedings filed against it. If, however, any of the aforementioned situations occurs, we may demand that the Buyer notifies us of the assigned debts and the debtors, supplies all information necessary for us to collect the debts, hands over the associated documentation and notifies the debtors (third parties) of the assignment.
5. The processing or transformation of the purchased item by the Buyer is always carried out on our behalf. If the purchased item is processed with other objects which do not belong to us, we shall acquire co-ownership of the new item in the same ratio as the value of the purchased item (final invoice sum, includ-ing VAT) to the other processed items at the time of processing. The item produced as a result of such processing shall be subject to the same provisions as the goods supplied under reservation of title.
6. If the purchased item is inseparably mixed with other objects which do not belong to us, we shall acquire co-ownership of the new item in the same ratio as the value of the purchased item (final invoice sum, in-cluding VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the item of the Buyer is to be regarded as the main item, the Buyer shall be deemed to have assigned co-ownership to us on a pro rata basis. The Buyer shall be custodian of the sole ownership or co-ownership thus arising on our behalf.
7. To secure our claims against the Buyer, the Buyer shall also assign to us the claims accruing to the Buyer against a third party through the adjunction of the purchase item to land.
8. If the reservation of title or the assignment is not effective under the law applicable in the territory in which the goods are located, it is agreed that collateral shall be provided which is equivalent to the reservation of title or the assignment of the goods in this territory. If the cooperation of the Buyer is required to establish such a right, the Buyer shall be obliged upon our request to undertake at its own expense all measures which are required to establish and maintain such rights.
9. We undertake to release the securities provided to us at the request of the Buyer so far as the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall be free to choose which securities shall be released.
§ 10 Assignment of the Buyer’s claims
The Buyer can assign a claim against us only with our explicit agreement in writing.
§ 11 Jurisdiction – Place of performance – governing law
1. Our Terms and Conditions of Sale apply exclusively; we will not acknowledge conditions of the Buyer which conflict with or dissent from our Terms and Conditions of Sale, unless we have expressively agreed to their application in writing. Our Terms and Conditions of Sale shall also apply even if we are aware of conditions of the Buyer which conflict with or dissent from our Terms and Conditions of Sale, and yet de-liver the goods without reservation.
2. So far as the Buyer is trading as a businessman, Hamburg shall be the exclusive place of jurisdiction; we are however also entitled to sue the Buyer in the courts at its domicile in case of asserting our claims.
3. In the absence of any contrary stipulation in the order confirmation, place of performance shall be Ham-burg.
4. The law of the Federal Republic of Germany shall apply; the UN Convention on the International Sale of Goods (CISG) is excluded.