General Terms and Conditions of Sale and Delivery (2021–03)
- All our services and offers are based exclusively on these general terms and conditions. These are part of all contracts that we — hereinafter also referred to as the contractor — conclude with our contractual partners, hereinafter referred to as the client or customer. They also apply to all future deliveries, services, or offers, even if they are not separately agreed again. The client’s business and purchase conditions are only effective if we acknowledge them in writing. Our offers are non-binding, they are merely requests to submit offers. All contracts and agreements are only binding for us with our written confirmation or invoice, including those with our employees and representatives. This also applies to changes to the agreed form requirement. Several clients are jointly and severally liable to us for the obligations arising from a concluded contract. All persons of the client are authorized to receive and submit legally binding declarations to us unless otherwise express notification from the client is available.
- Insofar as we manufacture according to customer drawings, samples, other information and instructions from the client, we assume no liability or liability for the functionality of the product or other defects, insofar as these circumstances are based on customer information and instructions. The customer releases us from any claims by third parties, including those arising from product liability against us for damage caused by the goods, unless we caused the damage intentionally or through gross negligence. The customer guarantees us that the manufacture and delivery of the goods manufactured according to his information and instructions does not infringe any third-party property rights. If property rights are asserted against us, we are entitled to withdraw from the contract after hearing the customer without any legal examination of any third-party claims, unless the third party withdraws the assertion of property rights within eight days by means of a written declaration to us. The customer has to compensate us for any damage caused by asserting the property rights. In the event of withdrawal, the work we have done so far must be remunerated. Further rights under the statutory provisions remain unaffected. The molds, tools and construction documents produced by us for the execution of the order are exclusively our property. The customer is not entitled to any claims, even if he has contributed to the costs of producing molds, tools, and construction documents unless expressly agreed otherwise. The transmission, reproduction, or publication of the offers, cost estimates, or written works prepared by us may not take place without our written permission. In the event of an infringement, the contractor reserves the right to charge the client for the costs incurred and any subsequent costs incurred; local prices and costs are to be reimbursed as expenses.
- Unless otherwise agreed, our prices are based on delivery at our company´s headquarters in Rostock or its harbor quay and do not include any packaging. The prices are in euros plus the statutory sales tax (value-added tax) at the respective applicable rate. The customer has to collect the ordered goods immediately upon receipt of a corresponding notification that the goods are ready for pick up at our plant in Rostock or its quay (debt to collect). The risk is transferred to the customer upon receipt of the notification of readiness.
- Provision periods and dates are only approximate unless we have expressly designated them as binding in writing. Provision periods begin with the receipt of our order confirmation, but not before clarification of all execution details, and are understood to begin at our plant in Rostock or its quay. A withdrawal by the customer is only possible after setting a reasonable grace period. Claims for damages and reimbursement of expenses — for whatever reason — only exist in accordance with the provisions in Section 9. Events for which we are not responsible in the context of a normal operating risk and which make the provision of the goods significantly more difficult or impossible for us entitle us to postpone the provision for the duration of the hindrance and a reasonable start-up time or because of the part of the contract that has not yet been fulfilled to resign. The client can demand a declaration from us as to whether we will provide the goods within a reasonable period or whether we want to withdraw. If we do not explain ourselves, the client can withdraw. The declaration made by us to the customer is sufficient evidence that we are prevented from providing the goods. The provision is extended in the event of labor disputes, strikes, and lockouts, official orders, material procurement difficulties, rejects or post-processing, operational disruptions, and staff shortages as well as in the event of unforeseen events of force majeure over which we have no influence, according to the duration of these events. This applies accordingly if one of the above-mentioned circumstances occurs at one of our sub-suppliers.
- Invoice amounts are to be paid in accordance with the negotiated terms of payment. The receipt of payment by the contractor is decisive for the occurrence of fulfillment. Unless otherwise agreed, payments are to be made within 10 days of receipt of the invoice without any discount. In the case of cashless payments, the day of the credit notification is considered as receipt of payment. Incoming payments are always to be credited first to costs, then to interest, and in the case of several outstanding claims, initially to the most troublesome and then to the oldest debt. Checks and bills of exchange are only accepted on account of payment. Payment by bill of exchange is subject to a separate prior written agreement, whereby all bill of exchange costs are borne by the customer and no discount can be granted. Regardless of the legal reason, the customer is not entitled to a right to refuse performance or a right of retention unless we have previously recognized his claim in writing or this claim has been legally established. Offsetting by the customer is only permitted if his claim has been legally established or is undisputed or if it has been recognized by us in writing.
- All goods delivered by us remain our property until all of our claims from all transactions with the customer have been satisfied — current account clause — and bills of exchange or checks given in payment have been honored by the customer. The processing of the reserved goods takes place for us as a manufacturer in the sense of § 950 BGB, without obliging us. If our reserved goods are to be regarded as the main item or if the main item is the property of the customer, the ownership of the new item shall pass to us in full when it arises. In other cases, we acquire co-ownership of the new item, based on the ratio of the sales value of our reserved goods to the other goods used for the new item at the time of processing, mixing, combining, or blending. The customer takes our property or co-ownership into safekeeping for us free of charge; it is treated as goods subject to retention of title. Before the transfer of ownership, our goods may neither be pledged nor assigned where else as security without prior consent from our side. Furthermore, we are to be informed immediately of the assertion of third-party rights to the goods or seizure of the goods by third parties and we are to be given all the information necessary for intervention and hand over certificates; otherwise, the client has to bear our damage. In this case, all of our claims against the customer are due for payment immediately. The customer is entitled to sell or use our reserved goods in the ordinary course of business, provided that a claim is transferred according to Section 7. The entitlement expires if the customer does not meet his payment obligations towards us on time or if he has protested by checks or bills of exchange or if he suspends his payments. In this case, we are entitled to temporarily take back the goods at the customer’s expense and, after a reminder, to dispose of the goods at our discretion. We will then issue the client with a corresponding credit.
- If our goods are sold before payment of our claims, the client is obliged to reserve our property rights until his buyer has paid for the goods in full. The claim against the buyer arising from the resale is hereby assigned to us, as are other ancillary or security rights of our customer from the sale as well as any claims for compensation in the event of damage or destruction of our reserved property, which also includes the sum insured in its place. We accept this assignment. Insofar as our co-ownership is sold, the assignment of the claims extends to the amount that corresponds to our share value, if and to the extent that extended and expanded retention of title claims of other suppliers are affected. Upon request, the customer must inform us of his customers and notify them of the assignment, as well as handing us over all documents necessary to assert our rights from the retention of title. As long as the client punctually fulfills his contractual obligations towards us, he is authorized to collect the assigned claims. He must keep the amounts collected for us separately and pay them to us immediately as soon as and to the extent that our claims become due. The authorization expires in the event of a check or bill of exchange protest by the customer or the customer’s final suspension of payments. The client has to bear the costs of any intervention against third parties and advance them on request. If our security through the retention of title and the advance assignment exceeds the claims to be secured by more than 20%, we are obliged to release paid deliveries at our discretion at the customer’s request. When all of our claims against the customer have been settled, the assigned claims are transferred back to the client.
- Complaints relating to obvious defects in the scope or quality of our goods that are recognizable upon careful examination must be reported to us in writing or asserted in writing at the latest within a preclusive period of eight days after the customer has picked up the goods. Slight deviations in the dimensions and designs within the scope of the technically specified tolerances do not entitle to complaints. In the event of a justified and timely notification of defects, we will remedy the defect through a supplementary performance at our option by removing the defect, delivering a defect-free item, or granting a credit note for the calculated lower value. We are entitled to refuse supplementary performance in accordance with the statutory provisions. In the event of a refusal of supplementary performance, failure, or its unreasonableness for the client, the client is entitled to withdraw in accordance with the provisions of the following regulations. To withdraw from the contract — unless withdrawal is legally excluded — the customer is only entitled to subsequent performance after a reasonable deadline set by him has expired unless the deadline is dispensable according to the statutory provisions (art. 281(2), art. 323(2), art. 440, art. 441 (1) BGB). In the event of withdrawal, the client is liable for deterioration, destruction, and lack of use for any negligent and willful fault. The provisions in Clause 9 apply to any claims for damages and reimbursement of expenses by the customer. In the case of fraudulent concealment of a defect or in the case of the assumption of a quality guarantee of the item at the time of the transfer of risk within the meaning of § 444 BGB (declaration by the contractor that the object of purchase has a certain property at the time of transfer of risk and that the contractor is responsible for all consequences of its failure regardless of fault wants to stand), the rights of the client are based exclusively on the statutory provisions. We are not obliged to provide supplementary performance if interventions or changes have been made to the goods without our consent unless the customer can prove that the defect was not caused by these interventions or changes. The limitation period for warranty claims for an item that has been used for a building following its customary purpose and has caused its defectiveness is two years, otherwise, it is one year.
- In the case of a pre-contractual, contractual or extra-contractual breach of duty, including a defective delivery, tort, and producer liability, we are liable for damages and reimbursement of expenses — subject to further contractual or legal liability requirements — only in the case of intent, gross negligence and in the case of infringement of an essential contractual obligation (contractual obligation, the violation of which endangers the achievement of the contractual purpose). However, our liability — except in the case of willful intent — is limited to the damage that is foreseeable when the contract is concluded. The assertion of useless expenses by the customer is excluded. Outside of the breach of essential obligations, our liability for slight negligence is excluded, but is, in any case, limited to the amount of the purchase price. A claim by the client or a third party for payment of a contractual penalty is excluded. In the case of slight negligence, we are only liable for damage caused by delay up to 5% of the purchase price agreed with us. The above-mentioned exclusions and limitations of liability do not apply to the assumption of a guarantee for the quality of the item within the meaning of art. 444 BGB, in the case of fraudulent concealment of the defect, in the case of damage due to injury to life, body, or health, as well as in case of mandatory liability under the Product Liability Act. All claims for damages against us, irrespective of the legal basis, expire at the latest after one year after collection of the item by the customer; in the case of tortious liability, this period applies from knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person liable to pay compensation. This regulation does not apply in the case of liability for intent or case of the assumption of a guarantee for the quality of an item, in the case of fraudulent concealment of a defect as well as in the case of damage to life, body, or health and in case of a mandatory liability according to the Product Liability Law. Any shorter limitation periods have priority.
- We are entitled to process and store the data received about the buyer relating to the business relationship or in connection with it, regardless of whether it comes from the buyer himself or third parties, within the meaning of the Federal Data Protection Act. Among other data, the personal data communicated to the contractor will be transmitted to subcontractors used by the contractor from the contact persons of the client and if necessary, from his contractual partners for the fulfillment and implementation of the contractual relationship in accordance with Art. 6 (1)(b), (f) EU-DSGVO. The contractor has contractually obliged the subcontractors to process this data exclusively for the fulfillment and implementation of the respective subcontractor following the provisions of the European General Data Protection Regulation and the German Federal Data Protection Act as the person responsible under Art. 4 No. 7 EU GDPR. The data subject can exercise his data subject rights listed below concerning this data transmitted to subcontractors both against the contractor and against the subcontractors. The client exempts the contractor from all claims based on a breach by the client of data protection regulations, be it by private third parties or on the part of the authorities. The data is stored for the duration of the business relationship as well as the commercial and tax retention periods, usually ten years from the end of the calendar year in which the respective exchange of services took place. After this period has expired, the contractor will destroy or delete the data immediately.
- The place of performance is Rostock. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Rostock. However, we are also entitled to sue the client at his seat. German law applies exclusively. The application of international sales laws is excluded (esp. United Nations Convention on Contracts for the International Sale of Goods, CISG for short or UN sales law). Should certain provisions of our conditions be ineffective for any reason, the validity and binding nature of the other provisions will not be affected. Rather, the customer agrees that the ineffective provision will be replaced by an effective one that comes close to the ineffective provision in terms of its economic meaning.
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