Terms and Conditions.
General Terms and Conditions
1. Scope of Application
1.1
All deliveries, services and offers made by Huckfeldt & Thorlichen GmbH & Co. KG, Basshorn 11, D-25436 Tornesch, Germany (hereinafter referred to as the “Seller”) shall be governed exclusively by these General Terms and Conditions. These Terms and Conditions form an integral part of all contracts concluded between the Seller and its contractual partners (hereinafter also referred to as the “Customer”) concerning the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers made to the Customer, even if they are not expressly agreed again.
1.2
Any general terms and conditions of the Customer or third parties shall not apply, even if the Seller does not expressly object to their validity in individual cases. Any reference by the Seller to correspondence containing or referring to the Customer’s or a third party’s terms and conditions shall not constitute acceptance of such terms and conditions.
2. Offers and Conclusion of Contract
2.1
All offers made by the Seller are subject to change and non-binding unless they are expressly designated as binding or contain a specific acceptance period.
2.2
Unless otherwise expressly agreed, a contract shall only become effective upon the Seller’s written order confirmation or upon execution of the respective order.
2.3
The written purchase agreement, including these General Terms and Conditions, shall exclusively govern the legal relationship between the Seller and the Customer. It constitutes the entire agreement between the parties with respect to the subject matter of the contract. Any oral statements or promises made by the Seller prior to the conclusion of the contract are non-binding. Any prior oral agreements shall be superseded by the written contract unless expressly agreed otherwise.
2.4
Any amendments or supplements to the agreements made, including these General Terms and Conditions, must be made in writing to be legally effective. The written form requirement shall also be satisfied by electronic transmission, including fax or e-mail, provided that a copy of the signed declaration is transmitted.
3. Prices and Payment
3.1
The agreed prices apply exclusively to the scope of services and deliveries specified in the respective order confirmation. Any additional services or special requests shall be charged separately. Unless otherwise agreed in writing, all prices are quoted in Euro ex works and are exclusive of packaging costs and the applicable statutory value-added tax (VAT).
3.2
Invoices are payable within thirty (30) days without deduction unless otherwise agreed in writing. The date on which payment is received by the Seller shall be decisive. If the Customer fails to make payment when due, outstanding amounts shall bear interest at a rate of nine (9) percentage points above the applicable statutory base interest rate from the due date. The Seller reserves the right to claim further damages resulting from late payment.
3.3
The Customer shall only be entitled to set-off or withhold payments if the respective counterclaims are undisputed, have been finally determined by a court of law, or arise from the same contractual relationship under which the relevant delivery was made.
3.4
The Seller shall be entitled to perform outstanding deliveries or services only against advance payment or appropriate security if, after conclusion of the contract, circumstances become known that are likely to significantly impair the Customer’s creditworthiness and thereby jeopardise payment of the Seller’s outstanding claims arising from the respective contractual relationship, including other individual orders governed by the same framework agreement.
4. Delivery and Delivery Periods
4.1
Unless otherwise agreed in writing, all deliveries shall be made ex works.
4.2
Any delivery periods or delivery dates stated by the Seller are approximate only unless a fixed delivery date or binding delivery period has been expressly agreed in writing. Where shipment has been agreed, delivery periods and dates shall refer to the time of handover to the freight forwarder, carrier or any other third party commissioned with transportation.
4.3
Without prejudice to its statutory rights arising from any default by the Customer, the Seller shall be entitled to extend delivery periods or postpone delivery dates by the period during which the Customer fails to fulfil its contractual obligations towards the Seller.
4.4
The Seller shall not be liable for any impossibility of delivery or delays in delivery caused by force majeure or other events unforeseeable at the time the contract was concluded and beyond the Seller’s reasonable control. Such events include, but are not limited to, operational disruptions, shortages of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, raw materials or energy, delays in obtaining governmental approvals, governmental measures, or delayed, incorrect or incomplete deliveries by suppliers.
If such events significantly impede or permanently prevent performance by the Seller, the Seller shall be entitled to withdraw from the contract. In the event of temporary impediments, delivery periods and delivery dates shall be extended by the duration of the disruption plus a reasonable restart period. If, due to such delay, acceptance of the delivery or service can no longer reasonably be expected from the Customer, the Customer may withdraw from the contract by providing the Seller with immediate written notice.
4.5
The Seller shall be entitled to make partial deliveries provided that:
- the partial delivery can be used by the Customer for the contractual purpose;
- delivery of the remaining goods is ensured; and
- the Customer does not incur any significant additional expense or cost, unless such costs are borne by the Seller.
4.6
If the Seller is in default of delivery or performance, or if delivery or performance becomes impossible for whatever reason, the Seller’s liability for damages shall be limited in accordance with Section 7 of these General Terms and Conditions.
5. Place of Performance, Shipment, Packaging, Transfer of Risk and Acceptance
5.1
Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship shall be Tornesch, District of Pinneberg, Germany.
5.2
The method of shipment and packaging shall be determined at the Seller’s reasonable discretion.
5.3
The risk of accidental loss or damage shall pass to the Customer at the latest upon handover of the goods to the freight forwarder, carrier or any other party responsible for transportation, whereby commencement of the loading process shall be decisive. This shall also apply in the event of partial deliveries or where the Seller has agreed to provide additional services, such as arranging shipment. If shipment or handover is delayed due to circumstances attributable to the Customer, the risk shall pass to the Customer on the day the goods are ready for dispatch and the Seller has notified the Customer accordingly.
5.4
Any storage costs incurred after the transfer of risk shall be borne by the Customer. Where storage is provided by the Seller, storage charges shall amount to 0.25% of the invoice value of the stored goods for each commenced week. The Seller reserves the right to prove and claim higher or lower storage costs.
5.5
The goods shall only be insured against theft, breakage, transport damage, fire, water damage or other insurable risks at the Customer’s express request and expense.
5.6
Any claims relating to transport damage must be asserted directly against the carrier within the applicable statutory or contractual deadlines.
5.7
The Customer shall inspect the goods carefully immediately upon receipt wherever reasonably possible. This inspection obligation applies not only to the external condition of the shipment but also to the contents of all delivered packages.
6. Warranty and Defects
6.1
The warranty period shall be one (1) year from delivery or, where acceptance is required, from the date of acceptance. This limitation shall not apply to claims for damages arising from injury to life, body or health or from intentional misconduct or gross negligence on the part of the Seller or its vicarious agents, which shall remain subject to the applicable statutory limitation periods.
6.2
In order to preserve warranty claims, the Customer must properly fulfil its obligations to inspect the goods and notify defects in accordance with Section 377 of the German Commercial Code (HGB). If the Customer fails to notify defects, the goods shall be deemed approved unless the defect was not detectable during the required inspection. Hidden defects must be reported within one (1) week after discovery; otherwise, the goods shall also be deemed approved with regard to such defects.
6.3
Where goods are intended for further processing, the inspection required under Section 377 HGB must be carried out before any processing takes place.
6.4
In the event of defects in the delivered goods, the Seller shall initially be entitled, at its own discretion and within a reasonable period, to remedy the defect or provide a replacement delivery. If such subsequent performance fails, becomes impossible, is unreasonably delayed or is refused, the Customer shall be entitled to withdraw from the contract or reduce the purchase price accordingly.
6.5
If a defect is attributable to the Seller’s fault, the Customer may claim damages subject to the provisions set out in Section 7.
7. Limitation of Liability
7.1
The Seller’s liability for damages, irrespective of the legal basis, including impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations or tort, shall, where fault is required, be limited in accordance with this Section 7.
7.2
The Seller shall not be liable for ordinary negligence on the part of its executive bodies, legal representatives, employees or other agents unless such negligence concerns a material contractual obligation (“cardinal obligation”). Material contractual obligations include, in particular, the timely delivery of the goods, freedom from legal defects, absence of material defects that significantly impair usability, and advisory, protective and custodial obligations intended to enable the contractual use of the goods or to protect the Customer’s personnel or property from significant harm.
7.3
Where the Seller is liable pursuant to Section 7.2, such liability shall be limited to damages that were foreseeable at the time the contract was concluded or that should reasonably have been foreseeable exercising ordinary commercial care. Indirect damages and consequential losses shall only be recoverable where such damages are typically to be expected from the intended use of the goods.
7.4
The above exclusions and limitations of liability shall apply equally to the benefit of the Seller’s executive bodies, legal representatives, employees and other agents.
7.5
The foregoing limitations of liability shall not apply in cases of intentional misconduct, guaranteed product characteristics, injury to life, body or health, or liability under the German Product Liability Act (Produkthaftungsgesetz).
8. Retention of Title
8.1
The Seller shall retain title to all goods supplied until all present and future claims arising from the business relationship with the Customer, including any outstanding account balances, have been settled in full. This shall also apply where payments are made towards specifically designated claims.
8.2
Any processing or transformation of goods subject to retention of title shall be carried out on behalf of the Seller without creating any obligations for the Seller. The processed goods shall continue to be regarded as goods subject to retention of title.
If the retained goods are processed together with other items, the Seller shall acquire co-ownership of the newly created product in proportion to the value of the retained goods compared with the other processed items at the time of processing. In all other respects, the newly created product shall be subject to the same provisions as the retained goods. If the newly created product constitutes the principal item within the meaning of Section 947 (2) of the German Civil Code (BGB), the Customer hereby transfers proportional co-ownership to the Seller, and the Seller hereby accepts such transfer.
8.3
The Customer shall neither pledge the delivered goods nor assign them as security. In the event of attachment, seizure or any other intervention by third parties, the Customer shall immediately notify the Seller.
The Customer is entitled to resell the retained goods in the ordinary course of business. However, the Customer hereby assigns to the Seller, by way of security, all claims arising from such resale up to the amount invoiced by the Seller (including statutory VAT), irrespective of whether the retained goods have been resold before or after processing. The same shall apply to any claims for damages relating to the retained goods. The Customer shall remain authorised to collect such claims even after assignment. The Seller’s right to collect such claims itself shall remain unaffected. However, the Seller undertakes not to collect such claims as long as the Customer properly fulfils its payment obligations and is not in default.
8.4
In the event of a breach of contract by the Customer, in particular in the event of late payment, the Seller shall be entitled, after issuing a reminder, to repossess the goods subject to retention of title. The Customer shall be obliged to surrender the goods accordingly. The enforcement of the retention of title or repossession of the goods shall not constitute withdrawal from the contract.
8.5
The filing of insolvency proceedings against the Customer’s assets shall entitle the Seller to withdraw from the contract and demand the immediate return of the delivered goods.
8.6
If the agreed retention of title or assignment is not valid under the laws of the country into which the goods are delivered, the security interest corresponding as closely as possible to the agreed retention of title shall be deemed to have been agreed. The Customer shall take all measures necessary to establish and maintain such security rights where required under applicable law.
8.7
For as long as any claims remain outstanding, the Seller shall be entitled to request information from the Customer at any time regarding the location and quantity of goods supplied under retention of title. The Seller shall furthermore be entitled to inspect such goods at any reasonable time.
9. Final Provisions
9.1
If the Customer is a merchant, a legal entity under public law, a special fund under public law, or has no general place of jurisdiction within the Federal Republic of Germany, the place of jurisdiction for all disputes arising out of or in connection with the business relationship shall, at the Seller’s discretion, be either Hamburg, Germany, or the Customer’s registered place of business. For claims brought against the Seller, however, Hamburg shall be the exclusive place of jurisdiction. Mandatory statutory provisions governing exclusive places of jurisdiction shall remain unaffected.
9.2
These General Terms and Conditions and the contractual relationship between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
9.3
Should any provision of the contract or these General Terms and Conditions be or become incomplete or contain a legal gap, such gap shall be filled by a legally valid provision that most closely reflects the commercial purpose of the contract and the intentions of the parties had they been aware of the omission.