1. The following General Terms and
Conditions shall become part of this contract on the
placing of an order and shall apply exclusively and to future
business relations. These general terms and conditions are
deemed accepted on the acceptance of goods or means of payment
at the latest. Our business partners general terms
and conditions, regardless of the nature of the latter,
shall only be binding if and as long as they are confirmed
by us in writing.
II. Delivery and performance PERIODS
2. We shall not be obliged to execute delivery
as long as we or any other companies engaged by us in relation
to the execution of the delivery transaction are impeded
in the fulfilment of the contract by force majeur, strike,
lockout, mobilisation, war, blockades, import and export
bans, traffic delays and any other circumstances. Furthermore,
we are not obliged to execute delivery as long as such goods
that we ordered from third persons for the fulfilment of
the business transaction have not been delivered despite
our written demand (Mahnung). We shall immediately notify
the buyer without any delay of any defaults of delivery
(Lieferstörung) consistent with sentences 1 and 2 above.
3. We shall be entitled to withdraw from the
contract upon written declaration in accordance with paragraph
5 in all cases contained in paragraph 3. No rights exercisable
against us shall result from such a withdrawal for the buyer.
4. Such rescission (Rücktritt) shall
become effective if immediately after receipt of the notice
of rescission the buyer does not declare in writing that
he continues to desire delivery. In this case we commit
ourselves to arrange at mutual expense for all adequate
measures to be taken for the achievement of satisfaction
of our delivery claim. The buyer shall not be entitled to
any further claim against us.
5. The buyer shall remain under the
obligation to perform acceptance in the cases of paragraph
3 regardless of the default of delivery occurred as long
as we are obliged to accept our suppliers deliveries.
The buyer may require, however, that we arrange for all
adequate measures to be taken for our release from the contract
with our suppliers.
6. The agreed purchase price is the net price
exclusive of the value added tax in force at the relevant
point in time, and it is calculated on the basis of carriage,
exchange rates, tax, customs duties and other public charges
related to the contract. Accountable increases in parts
of this calculation entitle us to modify the price accordingly.
IV. DELIVERY AND TRANSFER OF RISK
7. The risk of loss and of deterioration of
the goods shall pass to the buyer in cases of deliveries
free of charge and in the following events:
a) drop shipments with delivery to the forwarding agent
b) FOB- and CIF-transactions subject to Incoterms
c) sales from stocks as soon as the goods are removed from
V. DEFECTS and WARRANTY
8. We sell according to trademarks, numbers
and other quality descriptions as stated in the producers
original specifications. These are descriptions and shall
not be warranted qualities (zugesicherte Eigenschaften)
of the goods at any point in time. Warranted qualities (zugesicherte
Eigenschaften) may be agreed in writing under reference
to the legal consequences.
9. The buyer shall examine the goods without
any delay after their receipt and shall immediately notify
us if a defect appears. His failure to do so or any consumption,
mingling or selling on of the goods shall be deemed an unconditional
approval. A notice of defect of a delivery does not entitle
the buyer to reject further deliveries under the same or
a different contract.
10. A claim of defect is excluded if the buyer
has failed to preserve rights of recourse against third
parties (e.g. Proces Verbal (TA), cargo damage reports).
Our damage reduction measures shall not be deemed an acknowledgment
of a defect (Mängelanerkenntnis). Negotiations concerning
a notice of defect do not constitute a waiver of the objection
that the notice of defect was not issued in due time, was
factually unsubstantiated or was insufficient for any other
11. In the case of drop shipments our warranty
obligation is limited to those rights that we may claim
against our suppliers on the basis of the purchase contract
for the goods sold. The buyer is entitled, however, to the
rights in paragraph 13.
12. In the case of sales from stocks
the buyer is entitled to claim abatement of the purchase
price (Minderung) if he has given notice of the defect in
due time. Alternatively he is also entitled to withdraw
from the contract if he is not able to use the defective
goods for his purpose.
13. Beyond the rights in paragraphs 12 and 13 the buyer
is not entitled to any warranty claims (Gewährleistungsansprüche),
damages for non-performance (Nichterfüllung), damages
for consequential damage, and claims of negligent tortious
acts (fahrlässige unerlaubte Handlung) under §
823 German Civil Code (Bürgerliches Gesetzbuch).
14. EAn obligation under a warranty (Gewährleistungspflicht)
shall not come into effect after twelve months.
VI. TERMS OF PAYMENT
15. If nothing else has been agreed all
payment without deduction must be received by us within
seven days after delivery.
16. The principal is not entitled to a right of retention.
A setoff with counter claims is only permitted if these
have been approved by us as existing and due for payment
or if they have been ascertained by a non-appealable declaratory
17. In the event of delayed payment, and starting from the
due date we shall be entitled to charge interest of 8 %
above the base rate of the Deutsche Bundesbank effective
at the time of delayed payment in accordance with §
247 German Civil Code (Bürgerliches Gesetzbuch); we
hereby reserve the right to claim any further damage. A
processing fee of € 5 may be charged for every demand
18. If the principal does not comply with his payment duties,
or if we gain knowledge of circumstances that call his creditworthiness
into question all our claims, including those for which
we have accepted bills of exchange, shall become due for
payment immediately. In this case we shall only be obliged
to perform further deliveries if the principal offers payment
concurrent (Zug-um-Zug) with the delivery. If the principal
does not offer payment in cash we shall be entitled to claim
damages for non-performance instead of fulfilment or to
withdraw from the contracts if no deliveries have been executed
VII. RESERVATION OF OWNERSHIP
19. The goods sold are only intended
for processing in the buyers company and may not be
sold in an unprocessed condition without our consent.
20. The goods delivered remain our property until full payment
of all our receivables, including future ones, resulting
from the business relationship with the buyer. The right
of ownership shall also continue to be reserved if our receivables
are added to a running account and the balance has been
struck and approved.
21. The buyer is entitled to process the goods within the
normal course of business if he fulfils all contractual
duties herein and if none of the circumstances or events
under paragraph 18 have taken place. Processing and manufacturing
shall always be conducted for us under the exclusion of
the acquisition of ownership by the processing and manufacturing
party pursuant to § 950 German Civil Code (Bürgerliches
Gesetzbuch) without however subjecting us to any duties.
Objects resulting from any processing shall also serve as
a security for our accounts receivable against the buyer.
In the event of a processing with other goods not belonging
to us we shall become co-owners of the objects that result
from such processing to such a part as corresponds with
the value of our goods in relation to the other goods also
processed into the new object.
22. The buyer is entitled to sell the processed goods in
the normal course of business subject to the requirements
of paragraph 21, phrase 1. The buyer is obliged to reserve
the conditional right of ownership of the goods in respect
to his purchasers until the latter have fully paid the purchase
23. All the buyers claims to a resale of the goods
under reservation of ownership shall hereby be assigned
to us. If the goods under reservation are sold together
with other goods that do not belong to the seller the purchase
price shall only be deemed assigned up to an amount corresponding
to the value of our goods. If the goods subject to reservation
partly belong to us pursuant to paragraph 21, phrase 4,
the amount of the receivables assigned to us due to a resale
shall be determined corresponding to our part of the ownership.
24. Subject to the requirements of paragraph 21 the buyer
is entitled to collect the receivables resulting from the
resale. On our request the buyer shall notify us of any
assigned receivables. We shall be entitled to notify the
debtor of the assignment.
25. As long as our reservation of ownership is effective
the buyer shall not be entitled to any other acts of disposal
apart from processing and reselling under paragraph 21,
i.e. paragraph 22.
VIII. PLACE OF PERFORMANCE, PLACE
26. The dispatching works or the dispatching
warehouse are the place of performance for all deliveries
including those free of charge. Our headquarters are the
place of performance of the buyers duties and the
place of jurisdiction.
27. The inner-German law of the Federal Republic of Germany
shall be applicable. The common statutes on the international
purchase of movable property are excluded. This exclusion
shall apply in particular to the UN-Convention on Contracts
for the International Sale of Goods (Vienna Sales Convention/COSG-Convention).
28. If individual provisions in these General Terms
and Conditions should fully or partly be or become
invalid the validity of the purchase contract in total shall
not be affected. The contractual parties are obliged to
replace invalid provisions by a provision that comes closest
to the invalid provision within the limits of statutory
29. Any disputes arising out of the contract shall be settled
at our discretion by mediation in accordance with the valid
Hamburg Mediation Procedure for Commercial Conflicts, by
amicable Hamburg Chamber of Commerce Arbitrage under appointment
of a single judge in accordance with the valid Chambers
means of Regulation or by resorting to the general courts
of law. During the mediation process agreed upon the parties
are not allowed to commence court proceedings or arbitration
concerning the case in hand.
Version: 1st of December 2003
Tropag Oscar H. Ritter Nachf. GmbH