Terms
§ 1 – Conclusion of the contract
The client or buyer is bound by his order or purchase request for four weeks, unless the order or purchase contract is concluded immediately. At the end of this period of four weeks, the contract is concluded if the Contractor or Seller has not previously rejected in writing.
§ 2 – Prices
All prices are net prices plus VAT.
The contractor or seller is bound to its prices for four months. If, after the expiry of two months after the conclusion of the contract, material, price or wage and salary increases occur or taxes and duties are increased, the contractor or seller is entitled to adjust its final prices accordingly. In this case, the customer or buyer is only entitled to a right of withdrawal if the price increase does not insignificantly exceed the increase in the general cost of living in the period between conclusion of the contract and delivery.
Deposits and advance payments do not affect prices. They will be credited and applied to the final price. A principal or buyer who is a registered merchant within the meaning of the German Commercial Code (HGB) is not entitled to rights of retention and set-off.
§ 3 – Delivery
Delivery dates are only valid if they are expressly confirmed by the contractor or seller. If the contract is concluded in writing, the confirmation of the delivery date must also be in writing. The delivery period begins with the dispatch of the order confirmation.
The delivery period is observed if the delivery item has been dispatched to the contractor or seller by its expiry or if the customer or buyer has been informed of the readiness for dispatch.
If the contractor or seller is unable to meet the agreed delivery deadline, the client or buyer shall grant a reasonable grace period – starting from the date of receipt of the written notice of default by the client or buyer or, in the case of a calendar-specific delivery period, upon its expiry.
If the contractor or seller fails to deliver by the expiry of the statutory supplementary delivery period, the client or buyer may withdraw from the contract.
Disruptions in business operations for which the contractor or the seller is not responsible, in particular strikes and lockouts as well as cases of force majeure due to an unforeseen event through no fault of the contractor, shall extend delivery times accordingly.
In these cases, the client or buyer shall only be entitled to withdraw from the contract if the client or buyer sends a written reminder of the delivery after the expiry of the agreed delivery period and if this is not done within a reasonable grace period after receipt of the reminder letter from the client or buyer by the contractor or seller.
In the case of a calendar-specific delivery period, the grace period to be set begins at the end of the delivery period. The contractor or seller is not responsible for the aforementioned circumstances even if they arise during an already existing delay.
If the delivery is delayed at the request of the client or buyer, the costs incurred by the storage will be charged to the contractor or the seller for each month, beginning one month after notification of readiness for dispatch, but at least half of the invoice amount for each month in the case of storage in the contractor’s or seller’s factory.
If the customer or buyer is in default of acceptance for more than one month, he must pay the storage costs incurred. The contractor or seller can also use a forwarding company for storage.
As compensation for non-performance in the event of delay in acceptance, the contractor or seller may claim 25% of the order price without deductions, unless the client or buyer can prove that damage did not occur at all or not in the amount of the lump sum.
In all other respects, the contractor or seller reserves the right to assert a higher, proven damage, as is also the case with custom-made products. The costs of packaging and shipping are borne by the customer or buyer.
§ 4 – Warranty
As a guarantee, the client or buyer can only demand rectification. Instead of making improvements, the contractor or seller can deliver a replacement item.
The client or buyer may demand rescission of the contract (conversion) or reduction of the purchase price (reduction) if the rectification fails or if the contractor or seller refuses to deliver a replacement or fails to provide it within a reasonable period of time.
The warranty does not extend to such damages caused by natural wear and tear, moisture, strong heating of the rooms, other temperature or weather influences or improper handling, in particular due to independent modifications to goods already delivered.
Liability for consequential damage caused by defects is excluded, unless the contractor or seller or its vicarious agents are guilty of intent or gross negligence.
In particular, liability for damage or consequential damage caused by such items is excluded, the use or manner of which is generally classified as a security hazard by the client or buyer and the client or buyer has not requested the contractor or seller’s written consent before using such items.
The defect of a part of the delivered goods does not entitle the customer to complain about the entire delivery, unless the partial delivery is of no interest to the customer or buyer.
§ 5 – Default of payment
If the fulfilment of the payment claim is jeopardised due to a deterioration in the financial circumstances of the client or buyer that has occurred or become known after the conclusion of the contract, the contractor or seller may demand advance payment and immediate payment of all outstanding invoices, including invoices that are not yet due, withhold goods that have not yet been delivered, and discontinue further work on orders that are still in progress.
In this case, the client or buyer undertakes to provide security for the receivables due.
If he fails to do so the contractor or seller may withdraw from the contract. In the event of a withdrawal or return of delivered goods, the contractor or seller shall be entitled to compensation for applications and services already rendered.
In the event of late payment, default interest of 4% above the respective discount rate of the Deutsche Bundesbank shall be paid. This does not preclude the assertion of further damage caused by delay.
§ 6 – Right of the contractor to withdraw from the contract
The contractor or seller is also granted a right of withdrawal if the client or buyer has provided incorrect information about himself or about the facts determining his creditworthiness or has stopped his payments or has filed for bankruptcy or composition proceedings against his assets, unless the client or buyer makes immediate advance payment.
§ 7 – Retention of title
The goods remain the property of the contractor or seller until all liabilities arising from this contractual relationship have been fulfilled in full. In the event of a balance draw, the reserved title granted to the contractor or seller in accordance with the above provision shall be deemed to be security for the contractor’s claim from the balance.
If in connection with the payment of the purchase price by the client or buyer, a bill of exchange liability of the contractor or seller is established, the retention of title shall not expire before the client or buyer has redeemed the bill of exchange as the drawee, subject to all further rights based on the contractor’s or seller’s reservation of current account.
The sale of the goods subject to retention of title is only permitted to the client or buyer in the ordinary course of business, a pledge or transfer of title by way of security of the goods subject to retention of title is not permitted.
If the goods subject to retention of title are seized or confiscated from the client or buyer, the contractor or seller must be informed of this in writing without delay, together with the documents required for intervention (original of the seizure report, etc.).
In addition, the client or buyer is obliged to immediately object to the seizure or seizure in any case with reference to the rights of the contractor or seller as a supplier. An omission in this regard makes the client or buyer liable to pay damages to the contractor or seller. The client or buyer is obliged to adequately insure the goods subject to retention of title at its own expense for the benefit of the contractor or seller against any loss or damage.
The client or buyer hereby assigns all insurance claims arising therefrom with regard to the goods subject to retention of title to the contractor or seller, who hereby accepts this assignment.
The client or buyer hereby irrevocably assigns to the contractor or seller the claims arising against third parties in the event of a resale or for any other legal reason, as well as its claim for restitution on the basis of reserved ownership, to the contractor or seller, who hereby accepts this assignment.
The contractor’s or seller’s retention of title also extends to new items created by working or processing or by combination, which are deemed to have been manufactured for the contractor or seller and in which the contractor or seller acquires ownership or co-ownership according to the proportion of the value of the goods subject to retention of title at the time of processing, without the need for a special legal act and without any obligations arising for the contractor or seller.
The client or buyer shall retain the (co-)ownership for the contractor or seller revocably free of charge.
The client or buyer assigns in advance to the contractor or seller its ownership or co-ownership rights to the newly created goods as well as the remuneration claims against its client or buyer arising from the processing of the delivered goods in accordance with the value share of the processed goods, the contractor or seller hereby accepts this assignment.
If the client or buyer is in default of payment or fails to fulfil its obligations under the retention of title, the contractor or seller may demand the return of the goods subject to retention of title.
The assertion of rights of retention of title shall not be considered as a withdrawal from the contract. The contractor or seller undertakes to release the collateral to which it is entitled in accordance with the above provisions, at its option, to the extent that their value exceeds the receivables to be secured by 25%, but with the proviso that – with the exception of deliveries in genuine current account transactions – release must only be made in individual cases for those deliveries that have been paid in full.
§ 8 – Miscellaneous Provisions
The client or buyer is only entitled to offset if the counterclaim is undisputed or legally established. The assignment of all or some of the rights and obligations arising from this contract requires the prior written consent of the contractor or the seller. The contractor or seller is entitled to transfer rights and obligations under this contract to third parties.
§ 9 – Place of Performance, Place of Jurisdiction, Partial Invalidity
The place of fulfilment is Hamburg. Insofar as the client or buyer is a registered merchant, a legal entity under public law or a special fund under public law, the Hamburg Local Court shall be agreed as the place of jurisdiction for any disputes arising from the contracts or related legal relationships for both parties at the discretion of the contractor or seller.
The same applies if, at the time the action is brought, the domicile or habitual residence of the client or buyer is unknown or the latter has transferred his domicile or habitual residence abroad.
Should one or more of the above provisions be or become invalid in whole or in part, the validity of the other provisions shall not be affected. The invalid provision is to be replaced by an effective one that most closely corresponds to the intended economic purpose, and the same applies if there is a gap in the performance of the contract that needs to be supplemented.
§ 10 – Data protection clause
The client or buyer agrees to this and hereby acknowledges that his data will be stored by the contractor or seller and used in their customer file for internal company purposes.