General Terms & Conditions of Delivery
These General Terms and Conditions form an integral part of all our quotations and contracts for the delivery of goods and shall apply to our current or future business relationship. Agreements deviating from these General Terms and Conditions, including but not limited to contradictory terms and conditions of customers, and side agreements shall only become an integral part hereof upon our prior express written consent.
1. Quotation and Conclusion of Contract
1.1. Our quotations and estimates are subject to change without notice.
1.2. Contracts and amendments of contracts are only deemed to have been entered or agreed upon, as the case may be, if and when we have (i) accepted orders from Customer in writing, (ii) agreed in writing to supplements or changes requested by Customer, or (iii)
delivered the goods ordered by Customer.
1.3. We shall only be obligated to deliver the goods explicitly specified in our quotations and/or estimates.
1.4. Any samples and documents (such as technical descriptions, drawings, pictures, statements regarding color, measurements and weights) provided to Customer contain approximate values only as customary in this line of business. We shall be entitled to improve and alter these documents, statements and the objects themselves at any time - by, for example, changes in design and form, deviations in color - unless such improvements and/or changes are not reasonably acceptable to our customers. In cases of standardized goods, the tolerances specified on the standard sheets shall be valid.
1.5. Where we agree on trade terms (Incoterms) with Customer, the International Commercia lTerms as valid from time to time shall apply and take precedence over these General Terms and Conditions of Sale.
2. Prices
2.1. Our prices are net ex warehouse Bremen and exclusive of transportation, packaging and other costs which will be charged separately to Customer.
2.2. The value added tax in the applicable statutory amount is not included in our prices and will be shown separately in our invoices.
2.3. Should import duties or other public charges/fees be incurred or increased after conclusionof contract, Customer shall bear these additional costs/increases.
2.4. When we deliver abroad, Customer shall provide us immediately but not later than within 30 days of receipt of our order confirmation with all required information for us to make delivery abraod (including turnover ID no. of customer, proof of exportation or disposition, as the case may be, confirmation of transportation and final destination, etc.).
3. Deadlines
3.1. Deadlines shall be binding on us only if and to the extent we have expressly agreed to them in writing with Customer.
3.2. We shall be entitled to rescind the contract concluded with Customer if our supplier fails to supply or delivers late for reasons beyond our control so that we cannot fulfill or cannot fulfill in a timely manner our obligations to Customer.
3.3. Any occurrence of force majeure or of other unusual circumstances including but not limited to labor disputes, any act or omission of state or disruption of traffic, regardless of whether they affected us or our suppliers, shall release us from our obligation to make delivery or perform our service to Customer for the duration of the effects thereof. Should any such occurrence render our deliveries entirely impossible, we shall be fully released from our respective obligations. Any penalty thatmay have been agreed shall not be deemed to have been incurred under above circumstances.
4. Billing, Payments
4.1. Our claim for payment from Customer becomes due upon expiration of 30 days of the date of our notice of availability.
4.2. In cases where we have agreed payment by installments with Customer and Customer is in default with one installment or an amount that equals one installment or more, our full claim for payment becomes due and payable.
4.3. Bills of exchange and checks will only be accepted by us upon prior written agreement with Customer and in the case of bills of exchange only subject to the bill being discountable. Payments made by bill of exchange or by check shall only be credited to Customer’s account if their equivalent value including costs is made available to us without reservation.
5. Taking Delivery and Packing
5.1. Our Customer shall take delivery of perishable goods within 12 hours of our request and of all other goods promptly, but not later than within eight (8) work days of our request at the warehouse designated by us.
5.2. If Customer does not take receipt of our goods within the deadlines set (paragraph 5.1), we shall be entitled, after unsuccessful reminder and expiration of an appropriate time limit, to rescind the contract and claim damages of, at our option, either compensation for the damage suffered or - without furnishing proof of loss - 10 % of the agreed price; this being subject to Customer’s right to provide proof, in particular for the fact that we did not suffer any loss or a significantly lower loss.
5.3. Packaging for transport and all other packaging shall not be taken back by us, except for Euro-pallets that remain our property. Customer is obligated to provide for disposal of
packaging not taken back by us at its own cost.
6. Assignment, Offset and Right of Retention
6.1. Customer shall not have the right to assign any claims and rights it may be entitled to against us to third parties without our prior written consent.
6.2. Customer may only offset claims which are uncontested, non-appealable or ready for a court decision (proven) against our claims.
6.3. Customer shall only have the right of retention if and to the extent its counterclaim rests on the same contract. In addition thereto, paragraph 6.2 above shall apply accordingly.
7. Place of Performance, Passing of Risk and Insurance
7.1. We make delivery to our customers ex warehouse Bremen.
7.2. Partial deliveries are admissible.
7.3. The risk of accidental loss or accidental deterioration for the objects of delivery shall pass from us to Customer upon acceptance thereof, but not later than upon such objects leaving our warehouse. This shall also apply to partial delivery of goods, even in cases where we have assumed additional services (such as transportation or transfer).
7.4. Should the passing of risks to Customer (cf. paragraph 7.3 above) be delayed for reasons for which Customer is responsible, the risk of accidental loss or accidental deterioration shall pass to Customer no later than upon expiration of the period of time agreed under 5.1 hereof.
8. Industrial Property Rights and Reservation of Title
8.1. Any samples and documents provided to Customer are subject to our proprietary rights and industrial property rights. Unless we have given our prior written consent, our samples and documents may not be used for other purposes, in particular, not be copied or disclosed to third parties. Customer shall return such samples and documents to us promptly upon request.
8.2. We reserve title to goods delivered and/or installed (hereinafter collectively referred to as „Reserved Goods“) until full satisfaction of all claims to which we are entitled under this
contract and the business relationship with Customer, regardless of the legal basis thereof
and which arose or existed at the time of conclusion of contract or will arise in the future on the basis of our business relationship. For such reservation of title, the following shall apply:
8.2.1. Customer shall be entitled to resell, process, mix or combine and subsequently sell Reserved Goods within the scope of extended reservation of title as long as this is done in the ordinary course of business. Customer may not pledge or transfer ownership of Reserved Goods by way of security.
8.2.2. Any processing or refashioning of Reserved Goods shall be done by Customer exclusively on our behalf. In cases where Customer combines or amalgamates Reserved Goods with other goods not belonging to us, we shall acquire co-ownership in the new product in the amount of the invoiced value of the Reserved Goods. The new products resulting from such processing shall also be deemed to be Reserved Goods within the meaning of this provision.
8.2.3. Customer shall assign to us in advance and as a security all claims and accessory rights it has against third parties in connection with the resale of Reserved Goods as well as claims it may have against its insurers in this regard. In cases where the goods are exported, Customer shall also assign to us all claims it presently has or will have in the future against domestic and foreign financial institutions in connection with such exportation of goods, including but not limited to all claims resulting from collection orders, letters of credit and their acknowledgements as well as from contracts of surety and guarantees. If Reserved Goods are sold by Customer with other goods not belonging to us, regardless of whether without or after processing, above claims shall be deemed to have been assigned to us on a pro-rata basis in the net amount we billed Customer for such Reserved Goods. Above assignments shall not constitute a deferral of our claim for payment against Customer.
8.2.4. Customer shall retain its right to collect receivables assigned to us. Our authority to collect the claims ourselves is not affected hereby. We agree, however, not to collect such claims as long as our Customer is not in default with respect to us, does not file a petition for opening insolvency proceedings on its assets or such proceedings are rejected due to insufficiency of assets. If one of the above events has occurred, Customer shall forward to us the necessary information and documents for collection of the claims and inform the various debtors of the assignment of the claims to us.
8.2.5. Customer shall maintain the Reserved Goods in proper condition and shall separately store and mark the Reserved Goods as goods owned by us.
8.2.6. Upon Customer’s request, we shall re-assign to Customer our title to the Reserved Goods and the claims assigned to us to such extent as the value of the Reserved Goods exceeds the value of the claims we have against Customer by more than 20 per cent.
9. Defects
9.1 Customer must provide us the opportunity to rectify the defect within reasonable time,
which, at our choice, may be through elimination of the defect, delivery of goods that are free from defects or production of new work.
9.2. If rectification in the end fails, or if such rectification cannot be reasonably expected from us to be done or from Customer to be accepted, or if rectification is associated with disproportionate costs, Customer may rescind the contract or reduce the agreed price without prejudice to claims for damages that Customer may otherwise have.
9.3. Customer’s claim against us for reimbursement of expenses incurred for the purpose of rectification, including but not limited to forwarding and transportation costs and labor and material expenses, shall be excluded in cases where such costs and expenses have
increased because the object of delivery was subsequently transported to a place other than Customer’s premises, unless such rerouting is in line with the intended use of the object of such delivery.
9.4. Customer shall have a right to legal recourse against us only to the extent it has not entered into agreements with its customers beyond legal warranty rights. In addition to this, the provisions set forth in paragraph 9.3 above shall apply accordingly regarding the extent of Customer’s recourse against us.
9.5. In cases of complaints about defects, Customer shall be entitled to withhold payments to an extent reasonably commensurate with the defects that have occurred.
9.6. The period of limitation for defects of quality and of title shall be one year starting to run upon passing of risk, unless and to the extent (i) a longer period applies in accordance with sections 438 (1)(2), 479(1), 634(a)(1)(2), 651 German Civil Code, or (ii) the defect was maliciously concealed, or (iii) any of the cases of liability specified in section 10.1 below has occurred.
9.7. We deliver used goods - subject to section 10 below - under exclusion of our liability for
defects of quality and title.
9.8. Our obligation for payment of damages shall be governed by section 10 hereof.
9.9. Above provisions shall not imply a reversal of the burden of proof to the disadvantage of Customer.
10. Liability
10.1. Claims for damages and for reimbursement of expenses (hereinafter collectively referred to as „Damage Claims“) of Customer regardless of the legal basis thereof shall be exclude unless such Damage Claims arise from (i) the provisions set forth in the Product Liability Act, (ii) our intentional or grossly negligent breach of contractual or legal obligations (iii) injury to health or physical injury of Customer or its employees caused by a breach of duty for which we are responsible, (iv) our warranty for the presence of a specific quality, or (v) our breach of material contractual obligations.
10.2. In the case of our breach of material contractual obligations, Damage Claims asserted by Customer against us shall be limited to foreseeable damages that are typical to the contract, unless there is intent or negligence involved, or we are held liable on the basis of injury to health or physical injury, or our warranty for the presence of a specific quality.
10.3. Any breach of obligation by our legal representatives or persons employed by us in
performing our obligations shall be deemed to constitute a breach or violation by us.
10.4. Paragraph 9.9. above shall apply accordingly for our liability.
11. Data Protection
Customer agrees that we electronically store data on our customers within the scope of our business relationship and that we process and use such data for our business purposes in accordance with the law.
12. Jurisdiction/Venue, Applicable Law, and Partial Invalidity
12.1 The courts of Bremen (city of Bremen) shall have exclusive jurisdiction and venue for
any litigation that may directly or indirectly arise out of our contractual relationship with
Customer, where such jurisdiction and venue shall include, but not be limited to, matters
arising from documents, bills of exchange and checks. We shall, however, at our sole
discretion, also be entitled to assert claims against Customer before courts having
jurisdiction and venue at Customer’s place of business.
12.2. The laws of the Federal Republic of Germany shall apply to the exclusion of the United
Nations Convention on Contracts for the International Sale of Goods.
12.3. Should any of the provisions contained in a contract concerning the delivery of goods of which these General Terms and Conditions form an integral part, be or become invalid, the remaining provisions of said contract shall remain unaffected thereby.