TERMS & CONDITIONS
Section 1 Application
(1) All offers, deliveries and services of the Seller shall be made exclusively based on these General Terms and Conditions of Delivery. These are an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as “Customer”) for the goods or services offered by it. They shall also apply to all future offers, deliveries and services to the Customer, even if they are not agreed again separately.
(2) Commercial terms and conditions of the Customer or third parties shall not apply even if the Seller does not object separately to them applying in a specific case. Even if the Seller refers to a letter that contains commercial terms and conditions of the Customer or a third party or refers to such terms, this is not tantamount to agreeing that those commercial terms and conditions shall apply.
Section 2 Offer and conclusion of contract
(1) All offers of the Seller are subject to change without notice and are non-binding unless they are explicitly designated as binding or contain a specified time for acceptance. The Seller may accept orders or contracts within fourteen days after receipt.
(2) The legal relationship between the Seller and Customer shall be governed exclusively by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. Said contract shall fully reflect all agreements made between the contracting parties concerning the subject of the contract. Oral promises by the Seller prior to the conclusion of this contract are legally non-binding and oral agreements by the contracting parties shall be superseded by the written contract, unless it is explicitly evident from them that they shall continue in binding force.
(3) Additions and amendments to the agreements made including these General Terms and Conditions of Delivery must be made in writing to be valid. With the exception of management board members or holders of general powers of attorney [Prokura], the employees of the Seller are not entitled to make oral agreements that deviate herefrom. The written form requirement can be satisfied by faxed transmission or by e-mail.
(4) Information from the Seller concerning the delivery item or service (e.g. weights, dimensions, utilisation values, load capacity, tolerances and technical data) and representations of same (e.g. drawings and images) are only approximate, unless the usability for the contractually provided purpose stipulates the requirement for an exact match. They are not guaranteed characteristics but descriptions or designations of the goods being delivered or the service being provided. This applies particularly to details which do not come from the Seller, such as the shrinkage values of the SeeBG [German maritime authority]. Even without this being expressly specified in the contract, the performance of all waste water treatment systems of the Seller that are sold shall be governed solely by the relevant type certificate governing the respective system, with the terms and conditions specified therein. Deviations customary in the trade which are made pursuant to legal regulations or which constitute technical improvements, and the replacement of components by equivalent parts are permitted provided they do not adversely affect their usability for the contractually provided purpose.
(5) The Seller reserves title or copyright to all offers and cost estimates issued by it and to drawings, images, calculation, prospects, catalogues, models, tools and other documentation and resources provided to the Customer. The Customer may not without the express consent of the Seller either make the content of these items accessible to third parties, disclose them, or use them itself or through third parties or copy them. It must at the request of the Seller return said items in their entirety to the latter and destroy any copies that have been made, if they are no longer needed by it in the ordinary course of business or if negotiations do not result in a contract being concluded.
Section 3 Prices and payment
(1) The prices shall apply to the scope of goods and services stated in the order confirmations. Additional or special services shall be charged for separately. The prices are in Euros ex works plus packing, statutory VAT, in the case of goods exported customs duty and fees and other public charges.
(2) Unless otherwise agreed, invoices are payable immediately following receipt without any deduction; invoices are sent by the Seller either by mail, by fax or, upon approval of the Customer, electronically. 15 days after the invoice date the Customer shall be in default without reminder. The date of payment shall be determined by the time of receipt by the Seller. If the Customer fails to make payment on the due date the outstanding amounts are subject to interest from the due date at 8 percentage points above the base rate. In principle, in the case of equipment, 50% of the purchase price is payable at production start-up and the remaining 50% within 15 days after dispatch, provided there is a credit insurance certificate from EulerHermes. Without this insurance certificate the remaining amount must be paid prior to dispatch. If the Customer does not pay despite a reminder notice, as of the due date the Seller shall be entitled to late interest and storage costs pursuant to Section 5 (3); the right to assert higher interest and additional losses in the case of default shall remain unaffected. If the Customer does not collect the goods three months after the agreed delivery date has passed or after the due date of an agreed payment despite a reminder or if it fails to make the payment, the Seller shall be entitled to rescind the contract and demand damages from the Customer. Any instalments paid by the Customer shall be offset against this.
(3) Offsetting against counterclaims of the Customer or the withholding of payments in respect of such claims is only permitted to the extent that the counterclaims are undisputed or have been fully and finally established by law.
Section 4 Delivery and time of delivery
(1) Goods shall be delivered ex works. Time periods and deadlines for deliveries and services announced by the Seller, such as for example referring to specific calendar weeks, shall at all times only be approximate unless a fixed time period or a fixed deadline is expressly promised or agreed. Where it has been agreed to ship the goods, delivery time periods and deadlines refer to the time the goods are delivered to the shipper, haulage contractor or other third party commissioned to ship the goods.
(2) The Seller may, notwithstanding its rights arising from delay by the Customer, require that the Customer extend the time periods and deadlines for the delivery of goods and provision of services or postpone them by the period in which the Customer fails to meet its contractual obligations to the Seller.
(3) The Seller shall not be liable if it is impossible to make delivery or for any delays in delivery to the extent that these have been caused by force majeure or other events that were unforeseeable at the time the contract was entered into (e.g. interruptions of operations of any kind, problems in procuring materials or energy, shipping delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, problems in procuring necessary administrative permits, regulatory measures or failure by suppliers to make delivery or incorrect or untimely delivery by same), for which the Seller is not responsible. To the extent that such events make it extremely difficult or impossible for the Seller to make delivery or provide the service and the problem is not merely temporary, the Seller shall be entitled to rescind the contract. Where problems are temporary the time periods for delivery or the provision of services shall be extended or the deadlines postponed by the period of the problem plus a reasonable lead time. Where due to the delay the Customer cannot be expected to accept the delivery or service it may rescind the contract by an immediate written declaration to the Seller.
(4) If the Seller is in default with a delivery or service or if it becomes impossible for it to make delivery or provide a service, for whatever reason, the liability of the Seller shall be limited to damages pursuant to Section 8 of these General Terms and Conditions of Delivery.
Section 5 Place of performance, shipment, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship shall be Hollenstedt unless other specified. The type of shipment and the packaging shall be subject to the obligatory discretion of the Seller.
(2) Risk shall pass to the Customer no later than upon handover of the delivery item (the determining factor shall be the start of the loading process here) to the shipper, haulage contractor or other third party appointed to make the shipment. This shall apply even if partial deliveries are made or the Seller has agreed to provide other services (e.g. dispatch or installation). If dispatch or handover is delayed due to a circumstance caused by the Customer, risk shall pass to the Customer from the day on which the delivery item is ready for shipment and the Seller has notified the Customer of this.
(3) Storage costs following the transfer of risk shall be borne by the Customer: In the case of storage by the Seller the storage costs for each week that has begun shall amount to 1% of the invoice amount of the delivery item to be stored, subject to a maximum of 25% for a storage time of 25 weeks.
The option for parties to assert and substantiate further or lesser storage costs shall remain. The Seller shall insure the consignment only if the Customer expressly wishes this and at its expense against theft, breakage, shipping, fire and water damage or other insurable risks.
(4) Where final acceptance must take place, the sales item shall be deemed to be accepted if since delivery or installation twelve business days have elapsed or the Customer has started to use the sales item (e.g. the delivered equipment has been commissioned) and in this case six business days have elapsed since delivery or installation.
Section 6 Warranty, material defects
(1) The warranty period shall be one year from delivery.
(2) The delivered items must be carefully examined immediately after delivery to the Customer or to the third party appointed by it. They shall be deemed to be approved unless the Seller has received a written notice of defects concerning obvious defects or other defects which were evident on an immediate careful examination, within seven business days after delivery of the delivery item or otherwise within seven business days after the defect is discovered or any earlier point in time in which the defect was evident to the Customer during normal use of the delivery item without closer examination, in the manner specified in Section 2 (3) Sentence 3. At the request of the Seller the delivery item complained of must be returned, carriage paid, to the Seller. Where the notice of a defect is justified the Seller shall compensate for the costs of the least expensive shipment method; this shall not apply where the costs are higher because the delivery item is located in a place that is different from the place it is used in accordance with its intended purpose.
(3) In the case of material defects in the delivered items the Seller is obligated and entitled, as it so chooses within a reasonable time, to first repair or replace the item. In the case of failure, i.e. if it is impossible or not feasible to repair or replace the item or if there is a refusal or unreasonable delay in repairing or replacing it, the Customer may rescind the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the Seller, the Customer may demand damages subject to the preconditions stipulated in Section 8.
(5) The warranty shall lapse if the Customer without the consent of the Seller changes or has third parties change the delivery item and as a result it becomes impossible or unreasonably difficult to remedy the defect. In all cases the Customer must bear the additional costs of remedying the defect arising as a result of the change.
(6) Used items may be delivered as agreed in the individual case with the Customer to the exclusion of any warranty of any kind for material defects.
Section 7 Intellectual property rights
(1) The Seller warrants in accordance with this Section 7 that the delivery item is not subject to third party industrial property rights or copyrights. Each contracting party shall inform the other contracting party immediately in writing if claims for the infringement of such rights are made against it.
(2) In the event that the delivery item infringes a third party industrial property right or copyright the Seller shall at its option and its expense alter or exchange the delivery item to prevent third party rights from being infringed but so that the delivery item continues to fulfil the contractually agreed functions, or procure a right of use for the Customer by concluding a licence agreement. If it fails to do this within a reasonable period, the Customer shall be entitled to rescind the contract or reduce the purchase price appropriately. Any damages claims of the Customer shall be subject to the limitations in Section 8 of these General Terms and Conditions of Delivery.
(3) In the case of infringements of rights by products of other manufacturers which are delivered by the Seller, the Seller shall at its option assert its claims against the manufacturers and upstream suppliers on behalf of the Customer or assign them to the Customer. Claims against the Seller shall exist in these cases under this Section 7 only if judicial enforcement of the above specified claims against the manufacturers and upstream suppliers was unsuccessful, or, for example due to insolvency, if it has no prospects of success.
Section 8 Liability for damages for negligence
(1) The Seller’s liability for damages, regardless of the legal grounds, including due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contractual negotiations and tort, to the extent that each of these is due to negligence, shall be limited in accordance with this Section 8.
(2) The Seller shall not be liable in the case of simple negligence by its executive bodies, statutory representatives, employees or other vicarious agents provided this is not a breach of material contractual duties. Material contractual duties include the obligation to make timely delivery of and to install the delivery item free of material defects and advisory, protective and custodial duties for the purpose of allowing the Customer contractual use of the delivery item or protecting the lives of staff of the Customer or its property from significant loss or damage.
(3) To the extent that the Seller is liable on the merits pursuant to Section 8 (2) for damages, this liability shall be limited to loss or damage which the Seller foresaw when it concluded the contract as a possible consequence of a breach of contract or which it must have foreseen if it had used ordinary due care and attention. Indirect or consequential loss or damage resulting from defects in the delivery item can moreover only be compensated for to the extent that such loss or damage can typically be expected when the delivery item is used in accordance with its intended purpose.
(4) In the case of liability for simple negligence the Seller’s obligation to pay compensation for property damage and resulting additional financial losses shall be limited to the sum of € 250,000 per claim (corresponding to the current coverage amount of its product liability insurance or third party liability insurance), even if this is a breach of material contractual duties.
(5) The above liability exclusions and limitations shall apply to the same extent to the executive bodies, statutory representatives, employees and other vicarious agents of the Seller.
(6) Where the Seller provides technical information or advice and this information or advice is not part of the its contractually agreed remit, this shall be provided at no charge and to the exclusion of any kind of liability.
(7) The limitations in this Section 8 shall not apply to the liability of the Seller for wilful intent, to warranted characteristics, to injury to life, limb or health, or under the German Product Liability Act
Section 9 Retention of title
(1) The purpose of the retention of title agreed to below is to secure all existing current and future claims of the Seller against the Customer arising from the delivery relationship between the contracting parties.
(2) The goods delivered by the Seller to the Customer shall remain the property of the Seller until payment is made in full of all secured claims. The goods and the goods subject to retention of title that supersede them under this clause are hereinafter referred to as “goods subject to retention of title”.
(3) The Customer shall keep the goods subject to retention of title at no charge for the Seller.
(4) The Customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the occurrence of the enforcement event (paragraph 9). Pledges and transfers in security are not permitted.
(5) If the goods subject to retention of title are processed by the Customer it is agreed that they shall be processed on behalf of and for the account of the Seller as manufacturer and the Seller shall immediately acquire ownership or – if the goods are processed from materials owned by several parties or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) in the newly created item in the ratio that the value of the goods subject to retention of title bears to the value of the newly created item. In the event that the Seller does not acquire such ownership, the Customer hereby transfers its future ownership or – in the above ratio – co-ownership in the newly created item in security to the Seller. If the goods subject to retention of title is associated or inextricably mixed with other items to form a single item and if one of the other items must be considered to be the main constituent, the Seller, to the extent that the main constituent belongs to it, shall transfer to the Customer proportionate co-ownership in the single item in the ratio specified in sentence 1.
(6) In the event that the goods subject to retention of title are resold the Customer hereby assigns to the Seller in security the resulting claim against the purchaser – in the case of co-ownership by the Seller in the goods subject to retention of title a proportionate share corresponding to the co-ownership share. The same shall apply to other claims which supersede the goods subject to retention of title or otherwise arise with respect to the goods subject to retention of title, such as for example insurance claims or claims arising from tort in the case of loss or destruction. The Seller revocably authorises the Customer to collect the claims assigned to the Seller on its behalf. The Seller may only revoke this collection authorisation in the case of an enforcement event.
(7) If third parties access the goods subject to retention of title, including as a result of attachment, the Customer shall immediately make them aware of the Seller’s ownership and inform the Seller of this in order to allow it to enforce its right of ownership. Where the third party is not in a position to compensate the Seller for the judicial or extra-judicial costs arising in this context, the Customer shall be liable to the Seller for these.
(8) The Seller shall at its option release the goods subject to retention of title and the items or claims that supersede them upon request provided their value exceeds the amount of the secured claims by more than 50%.
(9) If in the case of conduct by the Customer that is in breach of its contractual duties, including payment default, the Seller rescinds the contract (enforcement event), it shall be entitled call for the return of the goods subject to retention of title.
Section 10 Final provisions
(1) At the Seller’s option, either Hamburg or the registered office of the Customer shall have jurisdiction in respect of any disputes arising from the commercial relationship between the Seller and the Customer. Hamburg shall have exclusive jurisdiction in respect of legal actions against the Seller. Mandatory statutory provisions concerning exclusive jurisdictions shall remain unaffected by this provision.
(2) The contracts between the Seller and the Customer shall be subject exclusively to the law of the Federal Republic of Germany to the exclusion of the Convention on Contracts for the International Sale of Goods (UN Convention on Sale of Goods).
(3) To the extent that the contract or these General Terms and Conditions of Delivery contain gaps in the provisions, legally valid provisions to fill in these gaps shall be deemed to be agreed which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known of the gap in the provision.
The Customer notes that the Seller saves data arising from the contractual relationship under Section 28 Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG) for data processing purposes and reserves the right, provided this is required to fulfil the contract, to transmit the data to third parties (e.g. insurance companies).
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