All of our supplies and services shall be performed exclusively according to the terms and conditions contained in this contract. We hereby object to the purchaser’s conditions of purchase to the extent that these do not concur with our general terms and conditions of sale, supply and payment. The purchaser accepts our general terms and conditions at the latest when the purchaser has accepted the goods without objection.
1.
Offers, orders
1.1
Our offers are principally without obligation, unless we include a binding term of validity. All agreements, in particular, the acceptance of orders that have been placed must be confirmed by us in writing to attain validity.
1.2
The documents, depictions, drawings, statements on weights and dimensions pertaining to the offer are only approximate values and do not represent quality descriptions. As far as permissible deviations are not stipulated in the order confirmation and none are given in the customer’s specification, deviations customary in the industry are admissible in any case. The composition, suitability, qualification and function of our products are exclusively determined by our specifications and technical qualifications. Public statements, laudations or advertising by us or by third parties do not represent quality descriptions. We retain proprietary rights and copyrights to all documents; they may not be disclosed to third parties without our approval.
1.3
Guarantees regarding qualities or shelf life must be expressly declared as such in the order confirmation. If models and samples are delivered their qualities are not warranted unless expressly stated otherwise in the order confirmation. This shall also apply to data concerning the result of analyses.
1.4
Proposals regarding construction, which are made on the basis of the purchaser (e. g. oral information, drawings or other documents), are mere recommendations and do not represent descriptions of quality or use, unless otherwise expressly provided in the order confirmation.
1.5
For damage to or loss of drawings, samples, models, etc. which have been handed over by the purchaser we are liable pursuant to clause 6.
2.
Prices
2.1
All prices shall apply ex dispatch warehouse exclusive of statutory value added tax and costs of consignment and packaging. In the event that the prices stipulated by our suppliers, or if consignment costs and/or public levies increase between conclusion of contract and supply, we are entitled to raise our price accordingly; in dealings with consumers this provision shall only apply where supply is due to take place in excess of 4 months after conclusion of contract.
3.
Supply
3.1
The supply dates offered by us are only approximate dates insofar as not expressly agreed otherwise. The purchaser may set a reasonable and final time limit for delivery two weeks after expiry of the approximate deadline. We are only in default after expiration of such final time limit. Time periods for delivery do not begin to run until the customer has procured the documents he may be obliged to provide, e. g. approval or release of product drawings, or until he has paid an advance payment in case such payment has been agreed upon in writing.
3.2
In case of default or impossibility of performance we are liable for claims for damages exclusively pursuant to the provisions in clause 6 below. Our liability for damages according to clause 6 caused by default is limited to 0,5 % per completed week of the value of the delivery or partial delivery that is in default. Our maximum liability for damages caused by default is limited to 5 % of the value of the (partial) delivery in default.
3.3
In the event of force majeure, measures initiated in the course of employment disputes, in particular strike and lockout, and in cases of incorrect, delayed or non-delivery by our own suppliers, irrespective of its cause (reservation of self-supply), and other acts that hinder performance which are outside the scope of our responsibility, we are entitled to postpone supply for the duration of the hindrance and for a reasonable period thereafter required in order to reinstate operations. To the extent that the hindrance is an ongoing one, we reserve the right to rescind from the contract in whole or in part. In that case the purchaser is not entitled to any damage claims. He is no longer obliged to fulfil his contractually agreed counterperformance and any advance payments will be returned.
4.
Payment
4.1
Except as otherwise agreed, the invoice amount is payable within 30 days of invoice date without deduction.
4.2
In the event that agreed payment deadlines are exceeded, we are entitled to claim interest on all sums due from consumers at 5 percentage points above the base rate of the European Central Bank p. a. and 8 percentage points above the base rate of the European Central Bank p. a. on all sums due from commercial businessmen, unless a higher is proven.
4.3
Our claims shall become payable immediately independently of the term of bills taken in on account of performance if the purchaser is in breach of contractual agreements or if circumstances become known to us that reduce the purchaser’s creditworthiness. Notwithstanding further rights, we are entitled in this event to demand prepayment for supplies that are still outstanding.
4.4
The purchaser is not entitled to set-off counterclaims against our claims unless these have been recognised by us in writing or established by a court of law. The purchaser is not entitled to a right of retention unless the purchaser is not a commercial businessman and the right of retention is based on the same contractual relationship.
5.
Consignment
5.1
All sales are agreed as from works Hamburg. If the purchaser is a commercial businessman, shipment shall be made at the purchaser’s cost and risk. In this event the risk shall pass to the purchaser, also in case of partial delivery, when the goods are handed over to the person in charge of its transportation – irrespective of whether that person belongs to our firm or not – or when the goods have left our works for shipment. If the purchaser is a consumer, the risk shall pass to the purchaser when the goods are handed over to him. If the goods are ready to be dispatched but are not dispatched for reasons within the scope of the purchaser’s responsibility, the risk shall pass, irrespective of whether he is a commercial businessman or a consumer, to the purchaser when his default in acceptance commences.
6.
Warranty
6.1
The purchaser shall examine the goods immediately upon receipt at the place of destination, also if models or samples were delivered in advance. The purchaser must notify us of a defect without delay at the latest 7 days after arrival at destination in writing or by telex or facsimile stating an exact description of the defect. If the defect was not discoverable despite careful inspection of the goods on supply, we must be notified of the defect without delay after its discovery, whereby this latter provision only applies where the purchaser is a consumer. The goods shall be deemed to have been accepted without any defects, unless the purchaser notifies us of any defect within these time limits. All such notifications of defects of goods must be addressed to us.
6.2
If a notification of defects is justified and has been made in due time we shall subsequent perform through remedying the defect or replacing the delivered goods according to our choice insofar as the purchaser is a commercial businessman. If the purchaser is a consumer, he shall decide whether our subsequent performance shall be fulfilled through remedying the defect or replacing the goods. We are, however, entitled to refuse the chosen subsequent performance if such performance can only be rendered at unreasonable expense and the other way of subsequent performance is still available to the purchaser without any substantial disadvantage to him.
6.3
If subsequent performance or replacement of goods does not remedy the defect, the purchaser may demand a reduction in the purchase price or rescission of contract. In the case of immaterial defects, the purchaser is not entitled to rescission of contract. If the purchaser chooses rescission of contract after such unsuccessful subsequent performance, he is not entitled to any additional damage compensation.
6.4
If the purchaser receives defective assembly instructions we are only obliged to deliver assembly instructions free from defects. This obligation only exists if the defect of the assembly instructions prevents the proper assembly of the relevant good.
6.5
The provisions above contain the final and complete warranty for our goods. For any further claims for damages caused by the delivery of defective goods, we can only be held liable pursuant to clauses 6.6 and 6.8 below, irrespective of their legal basis.
6.6
For any claims based on misconduct, irrespective of their legal basis, e. g. default, delivery of defective goods, violation of contractual duties, violation of duties during contractual negotiations, torts, product liability (with the exception of the liability under the German Product Liability Act, “Produkthaftungsgesetz”), we can be held liable for damages in case of a wilful act or gross negligence only. We are not liable for negligent conduct of a minor degree, unless the contractual purpose is thereby substantially endangered. In any event, our liability shall be limited to foreseeable and typical damages. This restriction does not apply to injuries suffered by the purchaser to his life, body or health. Personal liability on the part of our statutory representatives, persons engaged in performance of our contractual obligations or employees for damage caused by them by negligent conduct of a minor degree is excluded.
6.7
Warranty claims of a purchaser who is a commercial businessman shall become time-barred one year after delivery of the goods. The same shall apply to the sale of used goods to consumers. In all other cases, warranty claims of consumers shall become time-barred two years after delivery of the goods. The purchaser’s rights to replacement shall become time-barred one year after delivery of the goods. This shall not apply where we can be accused of fraudulent intent.
6.8
Agreements between the purchaser and his customers beyond the statutory warranty claims shall have no effect to our disadvantage.
7.
Retention of title
7.1
All goods supplied shall remain our property (conditional goods) until the purchaser has fully satisfied all existing claims and – insofar as the purchaser is a commercial businessman – those arising after conclusion of contract. This shall also apply in the case of payments made by the purchaser which he has specifically designated as being in settlement of specific claims.
7.2
Processing and adaptation of the conditional goods shall take place for us as manufacturer within the meaning of § 950 BGB (German Civil Code), without obligation on our part. Processed and adapted goods shall be regarded as conditional goods pursuant to Art. 7.1. In the event that the customer processes, adapts, connects or combines the conditional goods with goods of another origin to make a new object or a combined object, we shall have the right to co-ownership in the new or combined object in the ratio of the invoice value of the conditional goods at the time of supply to the value of the other processed or combined goods. Our share in the co-owned property shall be regarded as conditional goods pursuant to Art. 7.1.
7.3
If the reserved goods are connected to other objects and if one of the objects belonging to the customer is to be regarded as the main object within the meaning of § 947 BGB, it is hereby pre-emptively agreed that co-ownership in the ratio of the invoice value of the conditional goods to the main object shall pass to us and the purchaser shall keep the object in safe custody for our benefit without charge. Our share in the co-owned property shall be regarded as conditional goods pursuant to Art. 7.1.
7.4
The customer shall keep the conditional goods in safe custody on our behalf. The customer must, upon request, enable us to conduct an inventory of and sufficiently label the conditional goods at the place of storage at any time. The customer must notify us without delay of any distraint of the property or other encroachment of our rights by third parties stating all details that would put us in a position to defend our rights using all legal means.
7.5
The customer may only dispose of the conditional goods in the course of normal business transactions under his normal conditions and with the proviso that such transfer is made subject to a retention of title covering the scope of the retention of title imposed by us such that the customer’s claims arising from the further disposal pursuant to Art. 7.6 to 7.8 are passed on to us.
7.6
The customer hereby pre-emptively assigns to us the claims arising from a further disposal of the conditional goods, including those arising in the course of contracts for work and contracts for delivery of work and all ancillary rights. They shall serve as security to us in the same scope as the conditional goods. The purchaser is only entitled to assign claims to third parties with our prior written approval.
7.7
If the customer disposes of the conditional goods together with goods not supplied by us, the assignment of the claims arising from such disposal shall only apply to the extent of the invoice value of our conditional goods at the time of supply. In the case of the disposal of goods of which we are co-owners pursuant to Art. 7.2 or 7.3, the assignment of the claims shall apply to the value of our share of the co-owned property.
7.8
The customer is entitled, until such right is withdrawn, to collect claims arising from the disposal pursuant to Art. 7.5 to 7.7.
7.9

In the event that the customer fails to fulfil his obligations arising from this contract or other contracts with us, or if circumstances come to our knowledge that reduce his creditworthiness,

  • we are entitled to prohibit the customer from disposing of or processing or adapting the conditional goods as well from combining or connecting them with other goods;
  • we are entitled to rescind of the contract; in this event, the purchaser’s rights of possession of conditional goods terminates and we are entitled to demand surrender of the conditional goods; we shall then be entitled to access the customer’s business premises and to take possession of the conditional goods at the customer’s expense and, without prejudice to the customer’s obligation to render payment and other obligations, to liquidate these in the best possible way via own sale or by means of an auction; after deduction of the costs incurred we shall credit the proceeds of the sale or auction against the customer’s payment obligations; we shall pass on any arising surplus to the customer;
  • the customer must, upon request, inform us of the name of the debtor of the claims assigned to us so that we can disclose the assignment and collect the claim; all of the revenues arising from the assignment that we are entitled to shall be forwarded to us immediately upon their receipt if and as soon as our claims against the customer are due;
  • we are entitled to withdraw the direct debit authorisation.
7.10
In the event that the value of the collateral security exceeds that of the claims by more than 10%, we are under an obligation, at the customer’s request, to release security, at our choice, to the value of the surplus.
8.
Place of performance, applicable law, jurisdiction
8.1
Place of performance for our supplies is the place where the goods are dispatched in any case. Place of performance for the purchaser’s obligations is Hamburg.
8.2
The relations between us and the purchaser are governed by the laws of the Federal Republic of Germany. Neither the UN-Treaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into German law, shall be applicable.
8.3
Place of jurisdiction for all disputes arising from or in connection with the contract shall be at our choice either Hamburg or the company seat of the customer, for lawsuits filed by the customer, exclusively Hamburg. Any statutory provisions regarding exclusive jurisdiction remain unaffected. This jurisdiction clause does not apply to customers who are not commercial businessmen.
9.
Concluding provisions
9.1
Any alterations and amendments to the contract, including this clause, must be made in writing and signed in order to be valid. This shall also apply to any supplementary and additional agreements.
9.2
Contracts with legal persons constituted under public law and public separate estates shall be treated as contracts with commercial businessmen.
9.3
If a provision herein is or becomes partly or completely invalid, the invalidity of this provision shall not affect the validity of the remaining provisions of this contract. The invalid provision shall be replaced by a valid provision reflecting in an economic respect as closely as legally possible the objectives of the invalid provision. This applies also to issues the parties intended but failed to address.
Technische Antriebselemente GmbH
February 2007