1. Application
1.1 These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing. These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
1.2 These terms and conditions of sale shall only apply vis á vis merchants and governmental entities within the meaning of sec. 310 para. 1 BGB (German Civil Code).
2. Offer, Acceptance
2.1 Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.
2.2 The quantity, quality and description of any specification for the goods shall be those set out in our written offer. The buyer shall be responsible for giving us any necessary information relating to the goods until receipt of our order confirmation, in order to enable us to perform the contract with its terms.
2.3 All property and intellectual property rights such as copyright, design, utility model, patent and trade mark rights in pictures, drawings and other documents are reserved. Disclosure of these documents to any third party is subject to prior consent.
3. Prices, Payment, Offset, Retainer
3.1 Prices are ex works, exclusive of the respective statutory VAT and exclusive of costs for packaging, except as otherwise expressly agreed upon. Any agreement on cash discount must be in writing in order to be valid.
3.2 The purchase price is due and payable net within 30 days after receipt of our invoice.
3.3 From the due date interest in the amount of 8 percent above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
3.4 The purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
4. Delivery
4.1 Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
4.2 In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
5. Passing of Risk, Shipment
Unless otherwise agreed upon, delivery is made ex works. If the purchaser demands shipment of the goods the risk of loss or damage to the goods passes to the purchaser upon dispatch. On request of the buyer, we will procure transport insurance; costs thereby incurred are to be paid by the buyer.
6. Retention of Title
6.1 We retain title to the goods until we have received payment in full of all our claims against the Buyer arising from the business relationship. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
6.2 The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
6.3 As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
6.4 The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns to us all claims arising out of such resale, whether the goods have been processed or not. Notwithstanding our right to claim direct payment the purchaser shall be entitled to receive the payment on the assigned claims. We agree to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
6.5 If the goods are processed by the buyer, the processing is deemed to be carried out by us as manufacturer within the meaning of sec. 950 BGB (German Civil Code). If the goods are processed by the buyer with goods that we have no property in, we shall become co-owner of the goods in proportion to the invoiced amount of the reserved goods with the purchase price of the other processed goods. The same shall apply if the goods are mixed with other goods. In addition the buyer assigns to us all claims against third parties on the grounds that the goods have been connected to the third party’s land or premises.
6.6 Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request.
7. Warranty
7.1 Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).
7.2 Warranty claims shall be time-barred after 12 months of the passage of risk.
7.3 In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of remedy of the defect or delivery of conforming goods. In the course of alternative performance we bear all expenses for the remedy of the defect except such costs which result from the fact that the goods have been removed to a place other than the place of performance. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or to withdraw from the contract.
8. Liability
8.1 In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
8.2 Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
8.3 Any liability not expressly provided for above shall be disclaimed.
9. Applicable law, Jurisdiction, Language
9.1 This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
9.2 Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg (Germany).
9.3 This text shall be construed in accordance with the laws of Germany. The English version of this text serves only for information and is not part of this legal transaction. Therefore, in the event of any inconsistency, only the German version shall apply.
10. Advertising
Unless revoked in writing, we are entitled to refer to the existing business relationship with the buyer in advertising, using the buyer’s company name and logo.