General Terms and Conditions of Sale and Supply


1. Authorized conditions and range of applicability

1.1
The following terms and conditions apply exclusively to all supplies and services made/provided by us unless other terms and conditions are agreed expressly in writing. These terms and conditions are also assumed to apply to all subsequent business whether or not they are expressly agreed upon at the time – especially for telephone orders. The acceptance of the goods delivered by us or the receipt of the service provided by us, is regarded as an acknowledgment of these terms of delivery in each case.

1.2
The terms and conditions of the customer will only apply, if and to the extent that we recognize them expressly in writing.


2. Information and advice

Information and advice regarding our products occurs on the basis of our previous experience. The merits, especially regarding the application possibilities of our products, indicated here, are only indicative average merits. We cannot be held responsible for an exact adherence of the merits and application possibilities.


3. Establishment and content of the delivery contract

3.1
Our offers are always subject to change. A delivery contract comes into existence if we confirm the customer’s order expressly in writing or perform the delivery without a separate confirmation. Our confirmation of order is decisive with regard to the content of the delivery contract, or if there is no separate confirmation of order, our delivery note at the time of delivery is valid as a confirmation of order. Vocal explanations and statements by our commercial agents are not binding in any event.

3.2
All data and information relating to our products, in particular the illustrations, designs, quality, quantity, weight, measurements and performance data, are only indicative and are non contractual. With regard to the weight and quantity specifications the partly natural nature of the characteristics of our products must be remembered. As far as that no limits are established for allowable deviations in the confirmation of order and none result from expressly recognized customer specifications, customary deviations are permissible in every case. The condition, suitability, qualification and function as well as the intended purpose of our goods are exclusively determined by reference to our performance specifications. Public statements and advertisements by us or by a third party do not represent contractual remarks of the product data.

3.3
The actual quantities and /or dimensions delivered by us, are determined decisively by us on the delivery of the goods. The quantities and/or dimensions determined by our respective supplier in the country of origin are only decisive when this is expressly agreed in writing with the customer.

3.4
Guarantees over the nature or durability of our merchandise must be expressly stated as such in the confirmation of order. For supplies of samples and tests, their characteristics are not guaranteed unless this is specifically stated in the order confirmation.
The same is valid for the statements of analyses.
Certificates of analysis do not relieve the processing plant using the commodity from its own examinations of the characteristics and the marketability of the product as well as its suitability for the purpose intended. An assurance of the suitability of the product for specific use purposes cannot be given.

3.5
Bei Kauf auf Muster- oder Analysengutbefund hat der Käufer spätestens 5 bzw. 20 Tage nach Musterzugang das Muster zu billigen, wenn es von vereinbarungsgemäßer Beschaffenheit ist. Die Billigung ist eine Hauptleistungspflicht des Käufers. Durch Billigung wird der Kauf auf Mustergutbefund zum Kauf laut Muster. Bei Kauf auf Analysengutbefund gilt Entprechendes. Die Kosten der Untersuchung hat in jedem Fall der Käufer zu tragen.


4. Supply and the passage of the risk

4.1
Unless expressly agreed otherwise in the order confirmation, delivery times and dates are only approximate, and the customer must allow us up to two (2) weeks after the delivery date and time to perform the delivery. Only after this extension of time, do we come into a delayed delivery.

4.2
In the event of a delayed delivery or inability to deliver, we are liable for a damages claim only in accordance with para 7.

4.3
In the event of an Act of God, relating to operational disturbances, transportation delays, the results of labor disputes, in particular strikes and lock outs, as well as in the case of non delivery, incorrect or the late supply from our supplier for whatever reason (self supply reserved), and with other obstacles to achievement, we can postpone the supply for the duration of the hindrance and for an appropriate starting-up time thereafter. If it is likely to be a permanent obstacle, then we are entitled to refuse in part or in whole the delivery of the goods. The self supply reservation refers only in the case of a congruent hedging transaction.

4.4
We are entitled to part deliveries. The place of delivery is always Hamburg.

4.5
If supply “on call” is agreed upon, the calls must take place within three months from the date the contract is entered into, unless another arrangement is agreed upon in writing. Calls not occurring within the prescribed period for the supply are dealt with in accordance with para 4.7.

4.6
All sales are made from the Hamburg warehouse. If the customer is a commercial customer, the shipping and transportation always takes place at the customer’s risk. The risk, including with part deliveries, becomes the customer’s as soon as the goods are handed over to the person implementing the transport, regardless of whether it involves a person connected with our business or a third party – and regardless of whether for the purpose of the transport it has left our warehouse, generally para 4.7 does not intervene. If the customer is a consumer, the risk with delivery of the sold commodity passes to the customer, para 4.7 does not intervene.

4.7
If the customer refuses the receipt of the goods or delays the supply for other reasons the risk passes to the customer from the time of default of acceptance by the customer. The customer is responsible for storage costs after passage of the risk. We are generally entitled to calculate storage costs at 0.5% of the invoice price for each month or the actual cost, unless the customer proves a smaller cost. Furthermore, we can grant the customer an extension of 14 days and in the event of no response can withdraw from the contract or require payment of damages instead of the supply.


5. Prices /payment

5.1
Our prices are subject to the legally required sales tax.

5.2
All shipping and transportation costs are to be paid for by the customer, if no other arrangement was agreed upon in writing. The freight rates, rates of duty and other fees resulting from the dispatch are those applicable on the day of delivery.

5.3
If the prices of our suppliers, freight or public taxes increase between the date of the order and the date of delivery of the goods and if our provable expenditure changes due to it, then we are entitled to increase our prices accordingly. In this case the new prices will be communicated to the customer immediately. This provision is only applicable to consumers, if the delivery is more than four (4) months after the date of order of the goods.

5.4
The customer is not entitled to reduce our demands relating to counterclaims or to establish a right of lien, unless the counterclaims or the right of restraint are recognized by us in writing or validly determined.

5.5
The purchase price is to be paid at the latest within 14 days after the invoice date. Discount s or other variations are not granted unless expressly arranged.

5.6
In respect of infringement of payment periods, we charge consumers late payment interest at 5 % pa over the respective base interest rate of the German Federal Bank and we charge commercial customers late payment interest at 8% pa over the respective base interest rate of the German Federal Bank, unless a higher or lower damage is proved.

5.7
If contractual agreements are not honored by the customer, our payments become due immediately regardless of the running time for payment of a debt. During delayed payment, bill protest, and insolvency/cessation of payments by the customer, we can demand immediate payment of our total claim – including any payments being processed – regardless of the agreed maturity. This applies even if circumstances giving rise to justified and substantial doubts about the solvency or credit worthiness of the customer were already available and known to us, on the placing of the order for the goods. We are also entitled in the situations referred to, to only execute outstanding deliveries against prepayment or security and if the pre payment or security is not made within two weeks to terminate the contract without notice. Continuing claims remain unaffected.

5.8
The customer is not entitled to withdraw from the contract by transfer to a third party without our written consent.

6. Retention of title

6.1
All delivered merchandize remain our property (commodity reservation) until the customer has made payment of all monies due to us.

6.2
Processing of the reserved goods occurs for us as a manufacturer in the meaning of § 950 BGB, without committing us. The finished commodity is considered as reserved goods in accordance with para 6.1. In the case of processing, connection and mixture of the reserved goods by the customer with goods of another origin creating a new item and/or miscellaneous continuance, we are entitled to an interest in the finished commodity in the proportion of the invoice value of the reserved goods at the time of delivery, to the value of the other processed goods. The co ownership portion is considered as reserved goods in accordance with para 6.1.

6.3
If the reserved goods are connected with other goods and if the result is regarded by the customer as the main item in the sense of § 947 BGB, it is already agreed that a co ownership portion in the proportion of the invoice value of the reserved goods to the value of the main thing belongs to us and the buyer keeps the goods free of charges for us. The co-proprietary-share is regarded as reservation-ware in accordance with item 6.1
.

6.4
The customer has to keep the reserved goods for us. Upon request at the place of the respective storage an inventory and an adequate labeling are to be made possible for us at anytime. The customer must inform us immediately of any seizing or other impairments of our rights by a third party, so that it is possible for us to proceed with all legal means against it.

6.5
The customer may sell the reserved goods only in the usual course of business on his normal conditions and under agreement of a retention of title to the extent required by us, subject to a guarantee that the requirements of paras 6.6 to 6.8 are satisfied..

6.6
The customer hereby agrees to transfer to us the payment(s) received from sales of the reserved goods, also from payment(s) received in respect of work or contracts for work and materials, together with all additional rights. They serve to the same extent as security for the reserved goods. The customer may only assign the rights to the goods, to a third party with our previous written agreement.

.6.7
If the customer sells the reserved goods, along with other goods not supplied by us, then the assignment in respect of the sold goods, only applies to a level equal to the invoice value of our currently reserved goods. On the sale of the goods, in which in accordance with paras 6.2 and 6.3 we have co ownership, the assignment of the rights applies at an amount equal to the co ownership portion.

6.8
If the amount is transferred to a current invoice, then the customer surrenders the level of payment corresponding to the balance required.

6.9
Until revocation, the customer is entitled to deal with further sales in accordance with paras 6.5 to 6.7

6.10
If the customer does not fulfill his obligations under this contract or other contracts with us, or circumstances arise which reduce his credit worthiness -
- We can forbid the further sale and/or processing of the reserved goods as well as their combination or connection with other merchandize.
- We can withdraw from this contract; the right of the customer to the possession of the reserved goods terminates and we can reclaim the reserved goods; we are then entitled to enter the working area of the customer and to take possession of the reserved goods all at the expense of the customer, without prejudice to the payment and other obligations of the customer, to utilize to best advantage by sale or auction; we will credit the customer with the proceeds obtained after deduction of the associated costs; any possible excess will be paid to the customer;
- the customer must on request inform us of the names of the debtors so that we can disclose the transfer and demand payment; payments due to us are to be transmitted to us immediately on receipt.
-we are entitled to revoke the direct debit authorization

6.11
If the value of security held by us exceeds the value being secured by more than 20% then on request by the customer we are obliged to release an appropriate level of collateral, according to our choice.7. Guarantee/liability

7.1
Even if samples or test goods were previously supplied, the customer must immediately carefully examine the goods delivered at the place of destination. The goods must be examined especially for the weight and number of items and for their condition. If cans, boxes, cartons or other receptacles have been delivered, spot checks must be made. The supply is considered as accepted and approved if a notice of defect is not received within seven (7) days after the receipt by the customer of the goods at the place of destination, or if the defect is not recognizeable on investigation, within seven (7) days after its discovery, the notice to be in writing, by telex or by fax with an exact description of the defect. Notices of defect must be addressed directly to us. A notification to commercial representatives, brokers or agents is not sufficient.

7.2
Transport damages are to be indicated immediately to the carrier; the requirements for notification of the Allgemeinen Deutschen Speditionsbedingungen apply.

7.3
On receipt of a justifiable and timely notice of defect, according to our choice we can re work or replace the goods, if the customer is a commercial customer. If the customer is a consumer, then he/she has the choice whether correction should take place by rework or by a replacement delivery. We are however entitled to refuse the choice of correction if it is possible only with disproportionate costs and the other type of correction does not carry substantial disadvantages to the customer

7.4
If a rework or a replacement ultimately fails, the customer is entitled to reduce the purchase price or withdraw from the contract. With minor defects the buyer is not entitled to terminate the contract. If the customer elects to cancel the contract after a failed post fulfillment, then he is not entitled to any claim for damages as a result of the defect.

7.5
The regulations contain the totality of the guarantee for our goods. In particular we are responsible for the lack or absence of assured qualities of the supplied commodity exclusively in accordance with paras 7.6 and 7.7

7.6
In respect of claims for damages because of culpable actions, resulting from legal arguments including delay, unsatisfactory supply, injury of obligations, from an obligation(s) with treaty negotiations, forbidden action, product liability (except the liability according to product liability law), we are only liable in the event of gross negligence. The liability for minor negligence is impossible unless the purpose of the contract is essentially endangered by the injury. In every case we are only liable for the contract typical and foreseeable damage. This restriction does not apply to damage which the customer suffers due to a culpable injury of his life, body or his health. A personal liability of our legal representatives, fulfillment assistants and employees as a result of minor negligence for damages caused is not possible.

7.7
Warranty claims from commercial customers fall under the statue of limitations within one year of delivery. The same applies for the sale of used items to consumers. In all other respects warranty claims by consumers fall under the statute of limitations within two years starting from delivery of the goods. Claims by the customer fall under the statute of limitations within one year starting from delivery of the goods. This is not applicable in the event of malice.

7.8
Agreements between the customer and its customers which go beyond the legal warranty guarantees are not our responsibility.


8. Applicable law / jurisdiction

8.1
The relationship between us and the customer is subject to the law of the Federal Republic of Germany. The UN convention on contracts for the international sale of goods (CISG) as well as any other, or any future inter government or international conventions, also after its assumption into German law, does not apply.

8.2
The jurisdiction for all disputes in connection with the delivery business is Nordersetdt or the customer’s registered office (our choice) and for complaints of the customer exclusively Nordersetdt. Legal regulations about exclusive competencies remain unaffected. This agreement on jurisdiction does not apply to customers who are not commercial customers.


9. Final clauses

9.1
All agreements are to be in writing. Alterations and additions to this agreement, including to this written requirement paragraph, also need to be in writing for their effectiveness. The same applies to secondary and auxiliary agreements. Verbal agreements or assurances from our staff do not bind us.

9.2
Business with legal entities of the public law and public special estates is treated as business with commercial concerns.

9.3
If a regulation of this contract should be wholly or partially ineffective or should become ineffective, then the inefficacy of this regulation does not affect the effectiveness of all the remaining regulations of this contract. The ineffective regulation has to be replaced by a legal regulation which is as close as possible economically to the ineffective regulation, as it is legally allowable to be. The same applies to any gaps in this contract.