§ 1 Validity
1. All deliveries, services and quotes made by DELACAMP Aktiengesellschaft, represented by its director Volker-Oliver Kappius, Bargkoppelweg 64, Hamburg, Germany (hereinafter referred to as “Seller”) are made exclusively according to these General Terms and Conditions of Business. These are the basis of all contracts which the Seller makes with its contractual partners (hereinafter referred to as “Buyer”) who conclude contracts with the Seller for its deliveries and services. They also apply for all future deliveries, services or quotes to the Buyer, even if this has not been specifically agreed to again.
2. General Terms and Conditions / Terms and Conditions of Delivery of the Buyer or other third party are not applicable, even if the Seller does not specifically renounce such conditions in individual cases. Even if the Seller makes reference in a letter to the General Terms and Conditions / Terms and Conditions of Delivery of the Buyer or other third party, this does not indicate that the Seller accepts the validity of such General Terms and Conditions / Terms and Conditions of Delivery.
§ 2 Quotation and Conclusion of Contract
1. All quotations by the Seller are subject to alteration and non-binding as long as they are not specified as being binding or contain a defined time limit for acceptance. Orders or contracts can be accepted by the Seller within a period of fourteen days after they have been received.
2. The sole authoritative document concerning the legal relationship between the Seller and the Buyer is a purchase contract concluded in writing between the Parties including these General Terms and Conditions of Business. This applies to all agreements between the contractual parties concerning the subject of the contract. Verbal commitments by the Seller prior to the conclusion of this contract are legally non-binding and any verbal commitments between the contractual parties will be concluded in writing at the least.
3. Details provided by the Seller concerning the subject of the delivery or service (e.g. weights, dimensions and technical specifications) as well as the presentation of said details (e.g. illustrations) are only approximate as long as their exactness is not part of a contractually agreed purpose. They are not guaranteed properties, rather descriptions or identification of the delivery or service. Customary deviations and deviations which are based on legal provisions or as a result of technical improvements, as well as the replacement of components by equivalent parts are permitted, as long as their use does not impact the contractually agreed purpose.
§ 3 Price, Payment and Set-off
1. The prices apply for the services and deliveries specified in the confirmation of order. Extra performances or special performances will be separately calculated. Unless otherwise agreed, the prices are in EURO, ex-stock less packaging, the legal VAT, transport costs and, if being exported, customs fees and charges and other official payments.
2. Invoices are to be paid within ten days without discount, unless otherwise agreed in writing. The date of the payment which counts is when the payment is received by the Seller.
3. Setting-off counter claims by the Buyer or withholding payments due to such claims is only permitted if the counter claims are uncontested or have been legally determined.
4. The Seller is permitted to withhold outstanding deliveries or services until pre-payment has been made or security offered if, after the conclusion of the contract, circumstances become known to the Seller which significantly reduce the credit worthiness of the Buyer and which endanger the payment of the Seller’s open invoices by the Buyer from the respective contractual relationship (including those from other individual orders for which the same framework contract applies).
§ 4 Delivery and Delivery Period
1. Deliveries are made ex-stock unless otherwise agreed in writing.
2. Deadlines and dates for deliveries and services made provisionally by the Seller are only ever approximate unless a fixed deadline or fixed date has been promised or agreed to. If shipping has been agreed, the delivery periods and delivery dates refer to the time the items are handed over to the shipping company, freight delivery company or the third-party who has been contracted to perform the transportation.
3. If the Seller is unable to meet binding delivery deadlines due to circumstances outside the Seller’s control (non-availability of the service), the Seller will inform the Buyer immediately of this and also inform the Buyer of the provisional new delivery deadline. If the item/service is not available within this new delivery deadline, the Buyer is entitled to withdraw from the contract partially or in full. Any compensating measures already provided by the Buyer will be refunded immediately by the Seller. A case of non-availability of the service in this regard is particularly where there is a non-punctual self-delivery by a subcontractor of the Seller, where the Seller has concluded a congruent covering transaction, neither the Seller nor the subcontractor are at fault, or the Seller is not obliged to procure the item in an individual case.
4. The Seller can – without prejudice to the Seller’s rights from the delay of the Buyer – require the Buyer to extend the delivery or service provision deadlines or move the dates agreed for delivery or provision of the service, in the event that the Buyer does not meet his/her contractual obligations with regards to the Seller.
5. The Seller is not liable for the impossibility of deliveries or for delays in delivery where this is caused by force majeure or other reasons which were not foreseeable at the time the contract was concluded (e.g. all types of operational disturbances, difficulties in procuring material or power, transportation delays, strikes, legal exclusions, lack of staff, power or raw materials, difficulties with obtaining the necessary official approvals, official measures, or the lack of or non-timely or incorrect delivery by suppliers), and where the Seller is not responsible for such occurrences. If the results mean that the supply or service provided by the Seller will be significantly more difficult to achieve or even impossible, and the obstruction is for an extended period of time, the Seller is entitled to withdraw from the contract. Where such obstructions are for a short period of time, the delivery date or service delivery dates will extend or move by the duration of the difficulties plus a reasonable run-up period. If the Buyer cannot be expected to accept delivery of the goods or services as a result of the delay, the buyer can withdraw from the contract by immediately informing the Seller in writing of this intent.
6. The Seller is only entitled to make part-deliveries, where the part delivery is applicable for the Buyer as part of the contractual purpose, the delivery of the remaining goods ordered is assured and the Buyer will not suffer unusual hardship or additional costs as a result (unless the Seller states that he/she will pay for these costs).
7. If the Seller is in default with a delivery or service, or if a delivery or services is impossible for the Seller for whatever reason, the liability of the Seller for any compensation payments is limited in accordance with § 7 of these General Terms and Conditions of Business.
§ 5 Place of Fulfilment, Shipping, Packaging, Transfer of Risk, Acceptance
1. The place of fulfilment for all obligations arising from this contractual relationship is Hamburg, Germany as long as nothing else has been agreed.
2. The type of shipping and packaging is at the discretion of the Seller in line with his/her responsibilities. 3. The risk is transferred to the Buyer from the time the objects being supplied are handed over to the freight forwarding firm or to the third-party responsible for the shipping. The start of the loading process is relevant in this regards. This also applies when part-deliveries are being made, or the Seller has accepted to provide other services (e.g. shipping). If the shipping is delayed, or the handover is delayed as a result of something which is caused by the Buyer, the transfer of risk to the Buyer is from the point that the objects being supplied are ready for shipping and the Seller has informed the Buyer that this point has been reached.
§ 6 Warranty, Material Defects
1. The warranty is for a period of one year from the delivery of the goods. This period does not apply for any claims for damages by the Buyer resulting from a violation of life, body or health or from deliberate or grossly negligent breaches of duty by the Seller or those helping the Seller meet his/her responsibilities. Such events will become time-barred in line with the legal provisions.
2. The objects delivered are to be carefully examined immediately on receipt by the Buyer or third-party appointed by the Buyer. This is to detect obvious faults or other faults which can be recognised by an immediate careful examination. This will be assumed to have been done if the Buyer does not inform the Seller within seven working days in writing of any faults or deficiencies. With regards to other faulty, the objects delivered will be taken as accepted by the Buyer if the Seller is not informed in writing of any faults within seven working days after the time in which the fault comes to light. If the fault could have been detected by the Buyer at an earlier point in time during normal use, this earlier point in time will be the start of the period in which any fault reports are to be made. If requested by the Seller, the objects delivered which are the subject of the fault report must be returned to the Seller carriage paid. If the fault report is justified, the Seller will refund the costs of the cheapest method of shipping. This does not apply if the costs are higher due to the fact that the objects delivered are being used in a location which is different than the location which was specified as the place of use originally.
3. If there are material defects in the objects being delivered, the Seller is initially obliged and entitled to re-work or replace the goods within a period of time which is judged to be reasonable by the Seller. If this is not possible, i.e. impossible, unreasonable, refusal or unreasonable delay of the reworking or replacement, the Buyer is entitled to withdraw from the contract or to reduce the purchase price by a reasonable amount.
4. The Seller is responsible for bearing the costs if a fault actually exists which result from the requirements to perform the check and to rectify the problem. In particular this includes transportation costs, mileage, wage costs and material costs (this does not include the costs involved in removing and installing the item). Otherwise, the Seller can charge the Buyer with any costs resulting from an unjustified fault rectification demand (in particular testing and transport costs) unless the Buyer was not able to detect that the fault was not present.
5. If the Seller is responsible for the fault, the Buyer can demand compensation for the losses involved under the circumstances specified in § 7. 6. The warranty is void if the Buyer makes changes to the objects delivered without the agreement of the Seller or allows third-parties to make such changes and the rectification of the fault is thereby impossible or made more difficult so that it is unreasonable to expect rectification. In this case, the Buyer is responsible for bearing the increased costs resulting from the fault rectification. 7. In the event that the delivery is made of second-hand or used goods as agreed with the Buyer, there is no warranty made for material defects.
§ 7 Liability for Compensation where there is Fault
1. The liability of the Seller for compensation, irrespective of on what legal basis, in particular due to impossibility, delay, faulty or incorrect delivery, breach of contract, breach of responsibility during contractual negotiations or unauthorised negotiations is limited in accordance with § 7 where there someone is at fault.
2. The Seller is not liable where there is minor negligence on the part of the company, its legal representatives, employees or other persons tasked with fulfilling the contract as long as this is not a breach of the contractual obligations. Relevant contractual obligations are such obligations which permit the proper execution of the contract in the first place and which the contractual parties could regularly and reasonably expect to be fulfilled.
3. If the Seller is liable for damages for reasons in accordance with § 7 number 2, this liability is limited to damages which the Seller could see as possible results of a breach of contract at the time the contract was concluded or which he could have reasonably been expected to see when applying the usual duty of care. Indirect and consequential damages, which are the result of the fault in the objects being delivered, are only compensable if such damages could be typically expected with proper and intended use of the objects being delivered.
4. In the event of liability for minor negligence, the obligation to pay compensation for the Seller is limited to an amount of 5,000,000 EUR per claim (corresponds to the current limit of coverage of the product third-party insurance), even when this is due to the breach of contractually-relevant obligations.
5. The above liability exclusions and limits of liability also apply in the same extent to the Seller’s company, its legal representatives, staff and other persons tasked with fulfilling the contract.
6. If the Seller provides technical information or advice, and this information of advice is not part of the contractually agreed provision of services, this is provided free of charge and liability of all types is excluded.
7. The restrictions of § 7 do not apply to the Seller’s liability where there is deliberate negligence, where there is damage to life, body or health or in accordance with the German Product Liability Act (Produkthaftungsgesetz).
§ 8 Retention of Title
1. The following agreed retention of title is used as security for the current and all future deliveries made by the Seller to the Buyer from the Delivery Conditions existing between the contractual parties (including balance receivable from one of the limited current account relationships from this supplier relationship).
2. The goods delivered by the Seller to the Buyer remain the property of the Seller until the complete payment of all secured receivables. The goods as well as the good where title is retained according to the following provisions in their place will hereinafter be referred to as “Reserved Goods”.
3. The Buyer will look after the Reserved Goods for the Seller free of charge.
4. The Buyer is entitled to process and sell the reserved Goods in normal business transactions up to the point a claim is made against them (number 9). Mortgaging or chattel mortgaging the Reserved Goods is not permitted.
5. If the Reserved Goods are processed by the Buyer as agreed, the processing is done in the name of and on behalf of the Seller as the manufacturer and the Seller immediately obtains the title or, if the processing is done using materials from several owners, or the value of the processed goods is higher than the value of the Reserved Goods, retains co-ownership (fractional co-ownership) to the newly processed goods in a ratio based on the value of the Reserved Goods to the value of the newly created goods. In the event that no such title acquisition is to occur to the Seller, the Buyer transfers now his future property or, in the above mentioned ratio, co-ownership to the newly procured item for good measure to the Seller. If the Reserved Goods are combined into one unit with other goods, or mixed so that they cannot be separated, and the other good is to be seen as the main item, the Seller, where the main item belongs to him, transfers co-ownership of the combined item to the Buyer in the ratio as described in the first sentence.
6. In the event of the Reserved Goods being sold on, the Buyer then transfers the resulting accounts receivable from the purchaser to the Seller as security. Where there is co-ownership of the Reserved Goods, the amount in proportion to the co-ownership ratio is transferred to the Seller. The same applies to other accounts receivable which occur in regards to the Reserved Goods or otherwise arise with regards to the Reserved Goods, such as insurance claims or other claims resulting from unlawful acts in the event of loss or destruction. The Seller authorises the Buyer to receive the accounts receivable which have passed to the Seller in the Buyer’s own name. This authorisation can be revoked. The Seller may only revoke this authority to receive the payments in the event of foreclosure.
7. If third parties acquire the Reserved Goods, particularly where they are impounded, the Buyer will immediately point out the Seller’s ownership of the goods and inform the Seller about the case to permit the Seller to enforce his/her property rights. If the third party is not able to refund the costs resulting from this either in court or out of court, the Buyer is liable to refund such costs to the Seller.
8. The Seller will release the Reserved Goods and the goods or receivables which take their place as long as their value exceeds the value of the secured receivables by more than 50%. The selection of the goods which are to be released as a result is the responsibility of the Seller.
9. If the Seller withdraws from the contract due to behaviour by the Buyer which is contrary to the contract, in particular delayed payment (enforcement event), the Seller is entitled to require the return of the Reserved Goods.
§ 9 Final provisions
1. If the Buyer is a trader, a corporation under public law or a special public entity or where he does not have a general place of jurisdiction within the Federal Republic of Germany, the place of jurisdiction for all disputes resulting from the business relationship between the Seller and the Buyer is Hamburg at the choice of the Seller or the Buyer’s place of business. Hamburg is the exclusive place of jurisdiction for plaints against the Seller in these cases however. Mandatory legal provisions concerning sole places of jurisdiction are unaffected by this provision.
2. The relationship between the Seller and the Buyer is only subject to the laws of the Federal Republic of Germany. The UN Convention on the International Sale of Goods (CISG) from 11 April 1980, does not apply.
3. If the contract or these General Terms and Conditions of Business contain loopholes, the respective legally effective rules count as agreed to fill these loopholes insofar as they would have been chosen by the contracting partners to achieve the economic purpose of this contract and for which purpose the General Terms and Conditions of Business would have been amended had the loophole been apparent at the time the contract was concluded.
4. These General Terms and Conditions of Business are available in German, English and French. In the event of any deviations, the German version has priority.