1. Terms of payment
The conditions printed on the front shall apply. The following shall apply in addition:
Invoices are strictly payable immediately and without deduction. The buyer shall be in default upon expiry of the deadline specified overleaf. In case of default of payment, our company is entitled to charge merchants 7.5% interest over the respective base interest rate and consumers 4.5% interest over the respective base interest rate, but at least 9%, unless we are required to pay higher interest for taking out bank loans. In such case, the debtor is at liberty to prove that no or only slighter loss has been incurred. The option to provide proof is limited to the amount which exceeds statutory interest on default.
We expressly reserve the right to refuse bills of exchange. A bill of exchange will only be accepted contingent upon final settlement. Discount and bill of exchange charges shall be borne by the customer and are immediately due and payable. Bills of exchange are accepted without warranty of correct presentment and protest. When bills of exchange and cheques are accepted, payment is not complete until the nominal value has been credited to our account.
Our prices shall apply according to the terms of the agreement. If no definite price is stipulated, the list prices applicable on the date the order is placed shall be charged. If no special agreement has been entered into for the statutory value added tax, the stipulated price shall apply, plus the applicable value added tax and the costs of packaging. If the ordering party desires shipment or delivery to such party’s domicile, the ordering party shall also bear the resulting costs unless otherwise expressly confirmed in writing.
3. Contract formation
Unless otherwise expressly agreed, our offers and prices are nonbinding and subject to change without notice. A contract of purchase is not deemed to have been formed until we have confirmed acceptance of an order to the buyer in writing. Such written order confirmation may be submitted together with the invoice. Should the order not coincide with our offer, the contents of our order confirmation shall apply. The customer’s general terms and conditions of business and delivery shall not apply insofar as they deviate from these conditions or limit our rights in relation to optional statutory law. They shall have no application, even if they are not contradicted again at contract formation. The buyer acknowledges our payment terms without reservation no later than with acceptance of the goods. It is herewith stipulated that our general terms and conditions of business will also apply to the transaction of future business with the customer.
The buyer may only set off our claims with legally established counterclaims that are acknowledged or not disputed by us. The assignment of claims which the buyer has against our company is excluded.
5. Delivery time and scope of delivery
Delivery times indicated by us are approximate and nonbinding. Claims may not be asserted against our company for the consequences of delayed delivery. We are entitled to make partial deliveries if this is reasonable for the customer while taking our interests into account and is not precluded by the nature of the order. Deliveries are strictly at the risk of the buyer, even in the case of carriage paid consignments.
The despatch is at the risk of the customer. Risk passes to the buyer upon delivery of the goods to the buyer, carrier, freight forwarder, etc., but no later than when they leave our company. We will undertake despatch, selection of the means of transport and the transport route as well as adequate packaging with the requisite care, but we shall only be liable in the event of a grossly negligent breach of this obligation. All despatch costs shall be borne by the customer. We are entitled but not obliged to insure deliveries in the name and for the account of the customer. Unless otherwise expressly agreed in writing, delivery shall be made to the address of the buyer found in the order as placed.
If the customer is a merchant, he shall inspect the goods immediately upon delivery in the ordinary course of business and report any defects, wrong and incomplete deliveries in writing within two days of receipt of the goods. Otherwise the goods will be deemed approved, unless the defects were not detectable at the inspection. If such a defect subsequently becomes apparent, this must be asserted immediately, but not later than one week after discovery. Otherwise the goods are also deemed approved with respect to such defect. Visible differences in quantity are to be reported to both us and to the carrier in writing immediately upon delivery of the goods.
8. Claims for defects
Goods that exhibit a material defect within the statute of limitations shall be repaired or replaced within a reasonable time at our option (cure), provided that the cause of the material defect already existed at the time risk passed.
Should a cure fail, the customer may rescind the contract or reduce the remuneration without prejudice to any claims for damages.
No claims for material defects are available for only slight deviation from the agreed quality, for only slight impairment of serviceability, for natural wear and tear or damage which occur after the passage of risk as a consequence of improper or negligent handling, particularly through improper repair work, excessive stress, unsuitable equipment or based on special outside influences which are not provided for under the agreement.
The ordering party bears the full burden of proving all qualifying conditions, particularly the defect itself, the time of discovery of the defect and timely reporting of the defect.
For consumers, claims for material defects are time-barred in 24 months; for merchants, the warranty period is 12 months from delivery of the goods.
Contracting parties’ statutory rights of recourse are available against us only insofar as the contracting party has not entered into any agreements with his buyer in excess of the statutory claims for defects.
The customer’s claims for damages and reimbursement of expenses are precluded for all legal reasons whatsoever, particularly for breach of obligations arising from the debt obligation and those arising in tort. This shall not apply to compulsory liability (e.g. under the Product Liability Act), in cases of wilful intent, gross negligence, due to injury to life, limb or health, or due to breach of material contractual obligations. The claim for damages due to the breach of material contractual obligations is, however, limited to such foreseeable damages as are typical of contract, unless wilful intent or gross negligence or liability is present or there is liability due to injury to life, limb or health. We shall always be liable only for the reimbursement of money, not for restitution in kind.
10. Retention of title
The delivered goods remain our property until all liabilities existing towards us are paid by the buyer. At our request, the buyer is obliged to immediately surrender possession of the goods to us or to a third party commissioned by us. In addition, we or a third party commissioned by us are entitled to pick up the goods and to enter the business premises of the buyer for this purpose. After prior written notification, we are entitled to sell the object of purchase and possible other collateral at our discretion within seven days after the date of such letter. The credit memo on the sales proceeds shall be deemed an invoice in terms of the value added tax law. The buyer must inform us of all third party seizures of our property – in particular of executions and attachments – and of all damage incurred by our property. He is obliged to reimburse all damages and costs – including court costs and lawyers’ fees – incurred by us through a breach of this obligation.
The buyer is entitled to resell and further use the goods in the ordinary course of business. He hereby assigns his claims from the resale to us. In the event that the amount of the claims that have been assigned in advance exceeds the amount of the secured claims by more than 20%, the secured party undertakes, at its option, to release the surplus accounts receivable if requested by the buyer.
As long as he satisfies his payment obligations towards us, the buyer is authorized to collect the claims from the proper resale until revocation by us, which we may do at any time. The buyer’s right of resale and to collect accounts receivable is extinguished upon the cessation of payment, the filing of an application for or the institution of insolvency proceedings, in the event of judicial or extrajudicial composition proceedings, a protest against a cheque or bill of exchange or an attachment. Assigned accounts receivable that are received after this are to be immediately aggregated in a separate account.
The buyer is not entitled to dispose of his claims from the resale through assignment. Our own power to collect shall remain unaffected by the buyer’s collection authorization. At our request, the buyer must inform us of the debtors of the assigned claim and inform the debtors of the assignment.
11. Place of performance, judicial venue, choice of law
The place of performance and judicial venue for general merchants for all legal disputes is Hamburg, Germany or the location of the buyer, at our option.
The judicial venue shall also be Hamburg if the customer has no general judicial venue within Germany at the time of order placement or if, after placing the order, he relocates his domicile or usual place of residence outside the territory of the Federal Republic of Germany, or his usual place of residence is not known at the time the action is filed.
German law shall apply.
The invalidity of a clause of these terms and conditions of delivery and payment shall not affect the validity of the other provisions. In place of the invalid clause, that contractual content shall be agreed to which promotes the purpose of the agreement in a legally valid manner.