1.1 The following sales and delivery conditions are only applicable to commerce between natural or legal entities acting in their commercial or self-employed function at the time of contract completion (Entrepreneurs in accordance with § 14 BGB German Civil Code).
1.2 Said conditions apply to all agreements, deliveries and other services. The applicability of buyer's purchasing conditions is not recognised.2. Offers and completion:
2.1 All offers are subject to confirmation.
2.2 Contracts are considered to be accepted when signed and confirmed by the seller, or when immediately executed following the receipt of an order. In this case, the invoice serves as a confirmation of the order. The seller's order confirmation exclusively defines the extent of the contractually agreed performance.
2.3 Samples and models, unless otherwise agreed, serve only as an approximation of quality, dimensions, weights and colours.
2.4 All details and assertions relating to our products and offers, as, for example, product specifications and similar, serve only to describe the product and may neither be considered to be an indication of a specific property, declaration of a specific property or attribute, nor as implying any form of guarantee.3. Deliveries and delays:
3.1 Unless a written, definitive confirmation by the seller is provided, all delivery dates must be considered to be approximate.
3.2 In the case of products not manufactured by the seller, the seller is subject to correct and timely receipt of products at the seller's premises.
3.3 Partial deliveries and partial services to a reasonable extent are permissible.
3.4 In the case of special models' unless otherwise agreed in writing - a variation to the extent of 10% above or below the ordered quantity is permissible.
3.5 The date of delivery may be delayed - also within an already delayed delivery process - by force majeure, strikes, lock-outs, actions of national and international authorities and all other unforeseeable hindrances occurring after contract completion, which are not within the control of the seller, insofar as such hindrances can be proved to have caused considerable delay to the delivery of the products sold. This also applies when such occurrences affect the seller's suppliers and their subcontractors.
3.6 The seller is not liable, under any circumstances, for any negligence on the part of his suppliers. The seller, however, is obliged to cede the right to possible claims for damages to the buyer. Third-party liability remains unaffected.4. Dispatch, transfer of risks, packaging:
4.1 The method and means of delivery are left, unless otherwise agreed, to the choice of the seller. This also applies to appropriate packaging.
4.2 The transfer of risks is governed by appropriate regulations (§447 BGB German Civil Code), and is regardless of whether delivery is from the sellers premises, or of which party is responsible for transportation costs.
4.3 Should dispatch be delayed at the wishes of, or as a result of negligence by the buyer, the goods will be stored at the cost and risk of the buyer. In this case, the readiness to dispatch may be equated with an actually performed dispatch.
4.4 In the case of refused acceptance and unnecessary returns, the seller reserves the right to charge a re-warehousing fee to the extent of 25% of the order value (without VAT).5. Prices and payments:
5.1 All prices are, unless otherwise agreed, subject to additional charges for packaging, dispatch and VAT.
5.2 Discounts are only granted in the case that the buyer is not in arrears with the payment of previous invoices.
5.3 In the case of overdue payments, the buyer is considered to be in arrears even without a payment reminder. During the period in which payment is overdue, the amount in arrears will collect interest at a rate of 8% above the current basic interest rate.
5.4 The seller's demands are payable immediately when conditions of payment are not adhered to (which also applies for part-payment plans in arrears to the extent of two instalments), regardless of the term of any received and credited drafts, and also, should facts become known relating to financial difficulties of the buyer. In the last case, the seller reserves the right to make all further deliveries subject to payment in advance or the deposition of appropriate securities.
5.5 Should the buyer be in arrears, or not honour a draft, the seller then reserves his right to repossess the goods. The buyer consents, at this point in time, to allow the seller access to the buyer's premises should a repossession of the goods become unavoidable. The seller may also forbid further sales or removal of the goods. Repossession in no way implies the cancellation of an agreed contract
5.6 The buyer may only assert claims against the seller's demands when these are uncontested or supported by a court order. A right of retention is only valid when this is a part of the same contractual agreement. Should any reported deficiencies or defects of the whole, or parts of the goods, be insignificant in comparison with the total price to be paid for the goods, then the right to withhold payment is fundamentally void.
6.1 Until full payment of the contracted purchase price, and all other demands resulting from the transaction, the goods remain the property of the seller. This also applies when the buyer settles payments for specifically designated demands. Is the buyer in arrears, the seller reserves the right to repossess the goods after submission of a reminder. The buyer is obliged to surrender the goods.
6.2 Should the reserved goods be related to other goods by way of the buyer, then the seller also retains a proportional title to the new goods. That is, to the extent of the proportion of the invoiced value of the reserved goods to the invoice value of the other goods and the order processing costs. Should the sellers title lapse due to incorporation, amalgamation or conversion, then the buyer is bound, at the time of contractual agreement, to transfer his title to the new goods to the extent of the invoice value of the reserved goods, and retain this for the seller free of all charges. The above titles are considered to be reserved goods as defined in 6.1.
6.3 The buyer is obliged to notify the seller immediately concerning any third-party access to reserved goods and transferred titles. He may only sell the reserved goods in the course of his usual commercial activities in accordance with his own general terms and conditions and as long as he is not in arrears, under the condition that, any demands relating to resale in accordance with the following sections, 6.4 and 6.5, revert to the seller. The buyer has no other title to reserved goods.
6.4 Any demands of the buyer resulting from resale immediately revert to the seller. These represent a security to the same extent as reserved goods. Should the buyer resell reserved goods in combination with other goods not supplied by the seller, then the demands from this resale should be a proportion reflecting the invoice value of the seller's goods and the value of the other goods sold.
6.5 The buyer has the right collect demands from resale, unless the seller retracts his direct debit authorisation. At the request of the seller, he is obliged to notify his customers of the transferral of his rights, and to provide the appropriate information and documents to authorise direct debiting. Under no circumstances is the buyer permitted to any further transferral of demands.
6.6 The seller is obliged to release any securities to which he is entitled, when their value exceeds the demands to be secured by more than 20%, insofar as these demands have not yet been settled.7. Notification of defects and warranty conditions:
The seller is liable for deficiencies and/or defects as set out in § 434 BGB German Civil Code.
7.1 The buyer must check the quantity and condition of the goods on receipt. Obvious and/or identified defects must be reported in writing within seven days at the latest, in any case, prior to further treatment or resale. Other commercial obligations, as per §§ 377 HGB German Commercial Code, remain unaffected.
7.2 Should the buyer find the goods defective, then the goods may not be used, i.e. they may not be divided, resold or converted until an agreement has been reached on the claim.
7.3 The buyer is obliged to make the object of the claim, or an example, available to the seller. Any warranty is void in the case of culpable refusal to comply. The property rights to replaced objects or parts revert to the seller.
7.4 In the case of legitimate cause of complaint, the seller reserves the right, under consideration of the type of defect in question and the legitimate interests of the buyer, to decide upon the method of remedial action (replacement, repair).
7.5 The buyer is obliged to notify the seller directly of warranty claims originating from consumers.
7.6 Defects of quality claims become invalid after a period of 12 months after receipt of goods.
7.7 §§ 478,479 BGB German Civil Code regulates claims for damages and is only effective when the consumer's claims are legitimate and only within the bounds of the law; this does not apply to goodwill policies agreed with the seller. These assume that the claimant will observe his individual obligations, in particular due notification of deficiencies.
7.8 Section 8 (General limitation of liability) is applicable for claims for damages.8. General limitation of liability:
8.1 Buyer's claims for damages are excluded. This is not applicable in the case of intent, gross negligence, non-compliance with fundamental contractual responsibilities on the part of the seller or acceptance of guarantees.
8.2 Claims for damages become invalid one year after receipt of goods.9. Industrial property rights:
9.1 Under no circumstances may prototypes or drawings of products developed by the seller be made available to third parties, in particular business competitors. The recipient is liable for all losses incurred by the unauthorised use of such materials by third parties.
9.2 The buyer may be liable for possible infringements of third-party rights when the production and provision of objects in accordance with his instructions is performed by the seller. In the case of an infringement of third-party rights caused by his actions, it is his responsibility to duly ensure that the seller is indemnified from claims resulting from such infringements.10. Place of fulfilment, place of jurisdiction, applicable law:
10.1 The current laws of the Federal Republic of Germany, excluding UN-purchasing law, are binding for the complete business transaction.
10.2 Place of fulfilment and exclusive place of jurisdiction for the settlement of disputes (including cheque and draft proceedings) is Hamburg.
standing: January 2005