Terms of sale and delivery
A. Subject matter of the contract
- All offers, delivery conditions and other services are subject to the following terms. Buyers' purchase terms that we do not acknowledge in writing are not binding on us, even when we do not explicitly reject them.
- Our offers are non-binding, and prices, availability and other contractual terms are subject to confirmation.
- The information in our sample leaflets, our samples, and the data from tests and analyses is non-binding information relating to the average quality of our goods.
B. Scope of services, supply and acceptance
- The delivery quantity is defined by the weight that we establish at our delivering plant. Over- and under-deliveries of the quantity sold that are customary in the trade will be deemed to have fulfilled the contract. Unless otherwise agreed by contract, we reserve the right to make partial deliveries.
- Where the buyer still has bills for earlier deliveries outstanding at the planned delivery date, we reserve the right to delay the delivery until the debt from previous transactions has been settled. Where force majeure or other circumstances not of our making (such as production breakdowns, lockouts, strikes, or incorrect or late deliveries by third-parties) prevent us from meeting an agreed schedule, we reserve the right either to withdraw from the contract or to postpone the delivery date by an appropriate length of time. However, the right to withdraw from the contract will only come into effect 14 days after the planned delivery date has passed. When the interruption to our operating processes is merely temporary, e.g. due to a strike or lockout, we shall only exercise our right to withdraw from the contract if the disturbance is so severe that we are unlikely to be able to make good on the delivery.
- Should we fail to meet a delivery date without justification under the terms described above, we shall request the buyer to state, within a reasonable period of time, whether they wish to withdraw from the contract due to the delay in the delivery and/or whether they require compensation for the service not provided or whether they still wish the delivery to proceed. We shall meet any claims for compensation according to the provisions of Section F. of these general sales terms and delivery conditions.
- In situations where carriage is free, or the delivery is to be to an address other than the buyer's, or the goods are to be transported in the buyer's own vehicle, the risk of accidental loss shall be transferred to the buyer when the goods leave the plant, at the latest. We only provide insurance cover when instructed to by the buyer and at their expense.
- Where goods are sold "ex works" and the buyer asks that our employees do the loading, or similar, they will be acting as the buyer's agents.
- The buyer's obligation to accept the goods is, as is the obligation to pay, a primary obligation. Where the buyer delays acceptance of the goods, we are released from the obligation to deliver those goods that have not been accepted if the buyer is not prepared to accept them despite our requesting them to do so.
- Where we have lent containers or other packaging to the buyer, the buyer should empty them and send them back to us at their own expense immediately after they have received the goods.
C. Prices and terms of payment
- Unless otherwise expressly agreed, our prices are quoted excluding the mandatory sales tax and free of charge and free border?. All additional costs, such as that of railway weighing operations, special carriage costs (express delivery surcharges, etc.) are to be borne by the buyer unless otherwise agreed.
- Our invoices are, unless otherwise expressly agreed, to be paid immediately after they are received and with no deductions. We reserve the right to rescind the granting of any credit or payment deferment where the buyer's financial circumstances deteriorate significantly if the buyer defaults on any liability they have to us. Payments shall always be settled on the oldest invoice due.
- Bills of exchange and cheques are only accepted in lieu of fulfillment. The buyer is to bear bank and note charges.
- Where the buyer's payment is late, we reserve the right to charge interest at a rate 8% above the European Central Bank's base rate. We reserve the right to demonstrate that there have been greater losses.
- The buyer only has the right to make offsetting counterclaims when these are undisputed or expressly acknowledged or have been asserted in law. The same applies to the exercising of rights of retention in business dealings with traders. Rights of retention are, moreover, limited to claims arising from the same contractual relationship.
D. Retention of title
- All goods that we deliver shall remain our property (reserved goods) until all of our existing and future receivables, including any requests for settlement of a current account, are fully paid. This also applies where payments are made for specifically denoted liabilities.
- The processing or reshaping of reserved goods is done for the seller as the manufacturer but with no obligation on the part of the seller. If the reserved goods are processed, mixed, blended, connected to or otherwise reshaped with items that do not belong to us, we shall then acquire joint ownership of the new object, the ratio being the invoiced value of the reserved goods to the total value of the new goods/objects. To the extent that the buyer acquires ownership/part ownership by processing, mixing, blending, connecting or otherwise reshaping the object created, the same applies as for the reserved goods. The buyer undertakes to tell us, if we so request, which objects we have acquired ownership of and the extent of our share in the jointly owned object. If our ownership of the reserved goods completely expires due to processing, mixing, blending, connecting or reshaping, the buyer then cedes a possible equalisation claim against a third-party (Para. 951 German Commercial Code) to us, to the amount of the invoice value. Where the buyer becomes the sole owner of the new object, they cede a joint ownership of the new object to us in a proportion which is equal to the invoice value.
- The buyer undertakes to keep the reserved goods safe for us with the care that should be taken by a responsible tradesperson. Where we so request it, we are at any time to be permitted to make an inventory of the reserved goods at the site where they are stored and to make a proper identification of our property.
- As long as the buyer complies with their obligations towards us under the terms of our agreement they are, having agreed an extension to the retention of title, entitled to dispose of the reserved goods in the course of normal business dealings. In such a case, they shall in advance cede the claims arising from the second transaction to us. We shall accept the cession. If the reserved goods are processed, connected to or mixed with other suppliers' goods before they are further disposed of, and should we thus acquire a joint ownership, the buyer shall cede in advance the part of the liability arising from the disposal that equates to the proportion of the joint ownership. If the reserved goods are sold along with other goods for a single price that is not broken down into constituent parts, a part-cession is to be agreed. The share of the liability ceded shall be sized according to the sale price (invoice value) of the reserved goods in the first transaction.
- As long as the buyer complies with their obligations towards us under the terms of our agreement they are entitled to collect receivables from further disposals. If they do not comply with these obligations, we reserve the right of rescission. If we so request it, the buyer shall tell us the name of the party owing the liabilities ceded and the amount of the liabilities ceded.
- The buyer is not entitled to use the reserved goods, or goods to which we have a joint part-ownership, as a pledge or to transfer them as security or to encumber them in any similar manner. Neither are they entitled to cede liabilities that were ceded to us which they are authorised to collect. The buyer must inform us immediately of any distraint measures or other access by third-parties to reserved goods or to ceded liabilities. In such a case, all the documents that are required for an intervention are to be provided to us. To the extent that the third-party is not able to refund the cost of the intervention to us, for example the court and out-of-court cost of a legal action under Para. 771 Code of Civil Procedure, the buyer is liable for the shortfall.
- In case of bankruptcy, and application for and opening of the insolvency procedure, or out-of-court settlement proceedings, the right to further dispose of, use or incorporate the reserved goods and the authorisation to collect ceded liabilities lapses. Where a cheque or bill of exchange is protested, the authorisation to collect similarly lapses. In these cases, we reserve the right to remove our reserved goods. Where the customer has blended/mixed the reserved goods with third-party goods, we reserve the right to, with the agreement of the customer, separate out our reserved goods on the basis of the invoice documentation. Where the customer does not cooperate in this separation process, we reserve the right to call in an assessor and to effect it ourselves. After taking back the purchased item, we reserve the right to dispose of it and to deduct the proceeds of the disposal, minus the appropriate disposal expenses, from the ordering party's liabilities.
- We undertake to release securities upon the buyer’s request, if the value of the security given to us exceeds our liabilities by more than 20%.
E. Physical defects / defects of title
- The buyer shall inspect the goods supplied immediately upon their receipt and inform us immediately in writing if anything is wrong with the type, quality or amount. Claims by the buyer under the terms of the guarantee with regard to all defects that can be identified through inspection are excluded after 14 days, at most, after the goods are delivered. The same applies to hidden defects, if they are not objected to immediately upon their discovery or three months at most after the goods are delivered.
- The guarantee is limited to the legal warranty period. The warranty period begins with the delivery. All of the buyer's claims against defects are limited to the right to have them remedied. Only where we fail to remedy the defect can the buyer reduce the purchase price or, if they so choose, cancel the contract.
- Where a buyer recall results in a successful claim against the seller under the provisions of the law on the sale of consumer goods, the rights of recourse based on the provisions concerning the sale of consumer goods remain unaffected. Where claims arise concerning compensation for damages, the provisions under F. shall apply.
- Buyer claims concerning compensation for damages are excluded where there has been a breach of duty due to negligence by a managerial employee or other of the seller's agents, unless the breach concerns a duty that is of major significance for the exercising of the contract's purpose. We only accept liability for indirect loss or loss that was not foreseeable at the time the contract was concluded if the seller or managerial employee was grossly negligent. The only exception to apply is in the event where damage needs to be compensated for death, physical injury or damage to health. Mandatory legal liability limitations, e.g. from taking over a guarantee or from product liability law, remain unaffected.
- The place of fulfillment for both parties is Buxtehude.
- The place of jurisdiction for disputes of all types is Hamburg.
- The only law applicable is German law as it applies nationally amongst nationals.
- Any possible ineffectiveness of individual provisions does not affect the effectiveness of the rest of these terms. The parties shall replace any ineffective provision by a provision that comes closest to the commercial purpose of the ineffective provision and which is effective.