General Terms and Conditions of Sale and Delivery of CAPOL GmbH
Scope, future business
Our terms and conditions of sale and delivery shall apply exclusively. We shall not acknowledge your opposing conditions or any conditions which deviate from our terms and conditions of sale and delivery unless we have expressly approved their validity in writing. Our terms and conditions of sale and delivery shall also apply if we carry out the delivery to you without reservation despite the knowledge of your opposing conditions or conditions which deviate from our terms and conditions of sale and delivery.
Our terms and conditions of sale and delivery shall also apply for all future business with you.
Our terms and conditions of sale and delivery shall only apply towards companies within the meaning of § 310 Par. 1 BGB [German Civil Code].
Offers, written form, changes to the contract, consultancies, special productions, copyrights
Our offers are without obligation. Your orders shall not be deemed binding for us until after our written confirmation or if we have begun with their execution. Our written order confirmation is solely decisive for the contents and scope of the contract. In case of short-term delivery a written confirmation can be replaced by the invoice issued by us.
Supply contracts (orders and acceptances) and release orders and their changes and supplements and collateral agreements must be made in writing. Our written confirmation is always required in case of release orders.
All agreements, reached between us and you for the purpose of executing the contract, are recorded in writing in the contract. Additional verbal agreements must be confirmed by us in writing.
Insofar as specifications exist for the products, all deliveries (including samples) shall correspond with the specified values. In case of innovative products specified analysis values merely represent typical values, which are for the purpose of product specifications. All samples are non-binding type samples. Information and advice concerning technical application questions, etc. are always provided without obligation.
We shall be entitled to undertake changes to the contents of the contract which are justified through further technical developments or improvements and through which the contents of the contract are not essentially changed.
You shall assume responsibility for the information and materials provided by you.
We reserve the property and copyrights to diagrams, drawings, calculations and other documents. This shall also apply for those written documents which are described as “confidential“. Our express prior written consent is required before forwarding these to any third parties.
In the case of orders it is presumed that you have all necessary permits.
Prices
Our prices are net without value added tax „ex works“, including packaging. The value added tax shall be charged at the respective applicable rate on the date of invoicing and shown separately in the invoice.
The goods shall be invoiced based on the quantities or weights determined by us.
Payment, default of payment, set-off
Bills of exchange and cheques are only accepted as conditional payment. They are deemed as payment when they have been encashed and finally credited to us. Customary bank expenses shall be for your account.
A special written agreement is required for the deduction of cash discount.
A payment shall only be deemed on time if we can dispose of the cash with value on the due date on the account given by us.
In case of default or exceeding of the terms of payment we shall be entitled to assert interest in the amount of 8% p.a. above the base lending rate of the German Federal Bank as damages due to default. The damages can be assessed higher insofar as we shall prove higher damages due to default.
In case of default of payment or justified doubts about your solvency or creditworthiness we shall be entitled to deem all claims from the business relationship with you due and payable immediately and demand advance payments for outstanding deliveries.
The setting-off against counter claims, or other deductions of any kind are excluded unless the claim for set-off has been expressly acknowledged by us or declared final and absolute; the same applies for the retention of the purchase price or part thereof because of counter claims by you.
Return of packaging means
Insofar as our deliveries are made in bundles on loan these are to be returned to us by you no later than within 4 weeks after their receipt in an empty impeccable condition at your account and your risk.
The affixed markings may not be removed. Bundles on loan may not be exchanged and not filled with other goods. You shall be liable in full for reductions in value, exchanged bundles and loss.
Deliveries, delivery time, packaging
The stated delivery time is without obligation. Agreed periods of delivery shall only be deemed as approximate.
Periods of delivery shall begin on the date of our order confirmation and only apply under the condition of prior clarification of all details for satisfying the order concerned. The observance of our delivery obligation further presumes the timely and proper satisfaction of all obligations by you. We expressly reserve the right insofar to the assertion of the plea of a contract not satisfied.
The delivery time shall be deemed as observed if the delivered object has left the plant by its expiry or if notification has been given within the agreed delivery time that the goods are ready for despatch. If you are in default of acceptance or if you negligently breach other obligations for assistance we shall be entitled to demand reimbursement of the damages insofar suffered by us including possible additional expenses. We reserve the right to further claims. Insofar as these pre-requisites exist the risk of accidental loss or accidental deterioration of the goods shall pass to you on the date upon which you were deemed in default of acceptance and debt.
In the event of a delay in delivery for which we are responsible we shall be given a reasonable final deadline before damages are demanded instead of performance and the contract is cancelled.
In cases of force majeure, strikes or lockouts or other industrial disputes or their effects and other events beyond our control, in particular in case of operational interferences from traffic no matter of what kind, partial or full failure of heat, power or raw material supply - either with us or with our suppliers - the delivery periods shall be postponed accordingly. In case of long-lasting implications of force majeure both parties shall be entitled to cancel the contract either in full or in part.
Reservation of title, advance assignment, collection
All goods shall remain our property until full payment of our claims.
The reservation of title shall also cover the products produced through processing and mixing or combining of our goods at their full value, whereby we are deemed as producers within the meaning of § 950 BGB. In case the right of ownership of third parties continues to exist in processing, mixing or combining with goods of third parties we shall acquire co-ownership as a ratio of the invoice values of the processed goods.
You hereby assign to us for security the claims against third parties arising from resale or processing in the amount of the value of our invoice or the amount of the possible co-ownership share, if this is lower. You are authorized to collect these for our account until revocation or until suspension of your payment to us.
In the event that you are in default of payment we can demand that the goods be returned according to reservation of title after expiry of a reasonable deadline. The proceeds generated through sale on the free market minus reasonable processing costs shall be credited.
The goods may neither be pledged to third parties nor transferred for security or assigned before full payment of our claims.
Should the value of the securities given to us exceed our total rights of claim by more than 10 %, we undertake, at your request, to relinquish securities of our choice. Upon settlement of all our outstanding debts and claims arising from the business relationship, ownership of the retained goods as well as title to the assigned claims shall pass to you.
Complaints of defects, liability for defects, damages
Complaints for defects shall only be taken into account if the goods have been inspected immediately after receipt - if necessary by a trial processing - and defects are reported in writing to us immediately no later than seven calendar days after receipt of the goods. Hidden defects must be reported to us in writing within five calendar days after determination within the warranty period. Complaints of defects are only permitted as long as the goods are still located in the despatch containers and we have the possibility for an immediate follow-up inspection. Complaints of defects can only be acknowledged if the buyer makes a sufficient quantity of a sample of the reported goods which have not been combined - at least 500 g - available to us for inspection.
We shall satisfy justified claims which have been properly asserted at our choice by delivering faultless goods or subsequent improvement. In the event that the subsequent performance fails you shall at your choice be entitled to cancel the contract or demand a reduction.
Warranty claims are not acknowledged if - after leaving our plant - the damages are due to the fact that the goods were repaired by third parties or in any other way were processed or used for another purpose than that for which they were intended or the regulations for use, the manufacturer’s instructions or other generally acknowledged regulations were not observed.
Article 9 below applies for the liability to compensate damages out of warranty.
Limitation period for claims out of warranty is twelve month after delivery.
Overall liability
Any loss or damages claim against us, particularly for damages not inflicted on the delivery item itself, e.g. as due to non-performance because of default or impossibility, other breach of contractual obligations, fault upon conclusion of the contract, tortuous claims, or for other reasons whatsoever, e.g. loss of profit or still stand of the production, shall be excluded. The liability only applies in cases of wilful misconducts or gross negligence, by violation of health or other personal injury, in case of defects which we have concealed or in case of defects of the goods, as far as the product liability law for damage to property privately used and for personal injury applies.
In case of culpable violation of material contractual obligations except in cases of gross negligence or wilful acts the liability shall be limited to compensation for the typical speculative damage. Material contractual obligations are those obligations which are of basic relevance for the ordinary performance of the contract and the observance of which you trust in.
Your claims for damages owing to defects of the supplied goods, incorrect deliveries and the breach of secondary duties are limited to the purchase price share which corresponds with the used quantity of goods; this shall not apply in case of gross negligence or wilful acts.
The limitation according to Par. 1 shall also apply insofar as you demand the reimbursement of useless expenses instead of a claim for reimbursement of the damages instead of performance.
Insofar as the liability for damages towards us is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
Place of performance, supplementary law, place of jurisdiction, partial invalidity
Place of performance for all deliveries and payments is our registered seat in Elmshorn.
The law of the Federal Republic of Germany shall apply in addition by excluding the UN Convention on the Law of Purchases of 11.04.1980.
Both parties are entitled to address either the ordinary courts with jurisdiction for Elmshorn or the court of arbitration of the Chamber of Commerce Hamburg by excluding the ordinary courts for all disputes arising from the deliveries.
Should individual parts of these General Terms and Conditions of Sale and Delivery be invalid this shall have no effect on the validity of the other provisions.
General purchasing conditions of CAPOL GmbH, Elmshorn
Conclusion of the contract, written form, secrecy, amendments, rights of use
Orders are placed by us on the basis of these general purchasing conditions. Other conditions are not part of the contract, even when not expressly contested by us. Our acceptance of the delivery/ service without other conditions being expressly contested shall in no way be construed as an acceptance on our part of your terms and conditions of delivery.
Payments for visits or for the preparation of offers, projects, drafts as well as for test deliveries will not be made. This shall also apply when we do not place the order.
Should our order not be confirmed in writing or delivered within eight calendar days of having been received, we are entitled to cancel the order. Should you accept our order subject to variances, you are required to clearly draw attention to these variances. A contract shall only come into existence when we have given our consent in writing to these variances. Shipment demands on our part shall become binding at the latest when they are not contradicted by you within three days of their receipt.
Only orders made in writing are legally binding. Orders made verbally or by telephone require our subsequent written confirmation in order to be legally binding. The same applies to verbal agreements and to subsequent amendments to the contract. The requirement of the written form may only be dispensed with by means of a written declaration.
You are required to treat the existence of the contract confidentially and may only make public reference to business relationships with us, for instance in advertising material and in lists of references, after having received our written consent to do so.
The contractual partners commit that they will treat all commercial or technical details not in the public domain and which become known to them through their business relationship, as business secrets. Sub-contractors are to be appropriately bound to this commitment. All documentation given to you together with the order, for example, drawings, models, samples, remain our property and may not be made accessible to third-parties; they are to be regarded as business secrets and to be treated confidentially. They are to be returned unsolicited once the order is completed. Should one of the contractual partners learn that information which is to be treated confidentially has come into the possession of unauthorised third-parties or that a confidential document has been lost, he shall immediately apprise the other contractual partner of this fact. The secrecy commitment continues to apply after the completion of this contract. It does not expire until and to the extent that the manufacturing knowledge contained in the documents handed over has become public knowledge.
To the extent that this can reasonably be demanded of you, we may demand changes to the delivery object after the contract has been signed. The consequences of such a change to the contract should receive adequate consideration from both contractual parties, particularly as regards additional or reduced costs and delivery due dates.
You will immediately make available evidence of origin requested by us together with all the necessary information and properly signed. The same applies to vouchers required for turnover tax purposes on domestic and intra-EU shipments. You will inform us immediately when according to German or any other law a shipment is, wholly or in part, subject to import and / or export restrictions.
You shall keep us informed of the necessary permits and of registration requirements demanded by public authorities for the export and the operation of the objects to be delivered.
You transfer to us, together with the delivery of the object of the order, the right to use it for all known types of use.
Prices, verification of prices, shipping, packaging
The agreed prices are fixed prices and exclude any kind of additional charges. Should an “ex factory” or “ex warehouse” price have been agreed, we shall assume only the most favourable freight costs. The nature of the pricing shall not change the agreed place of fulfilment.
Should the orders relate to deliveries to authorities subject to the public scrutiny of prices, you commit yourself to the unrestricted duty to supply information concerning the composition of the prices to the authorities entitled to verify such prices and acknowledge the permitted prices as binding upon you.
Our order number is to be shown on delivery notes, bills of freight, invoices and all correspondence conducted with us. You are responsible for all consequences arising from this requirement not being complied with.
We shall accept only the quantities or number of units we have ordered. We shall not accept under-shipments; over-shipments of up to 10% are permitted. This shall apply where no other arrangements have been made or agreed for an individual case.
Shipment takes place at your risk. The risk of any deterioration, including accidental loss, remains with you right up to the point of delivery to the agreed delivery address or location where the goods are to be used. We are not required to clear shipments made by truck before the delivery papers are in our hands.
Your obligation to take back packaging material shall be handled in accordance with the provisions of the law. Should the packaging material remain your property, then you shall take it back at your cost. The goods are to be packed in such a way that transport damage is avoided. Packaging materials are only to be used to the extent that they are necessary in order to achieve this goal. Only environmentally-friendly packaging materials may be used.
The interpretation of trade clauses shall be governed primarily by the latest version of the Incoterms valid at the time the contract was concluded.
Invoicing, payment, certificates
Invoices are to be submitted to us after the shipment, separately and in an orderly manner and shall give the order number and complete delivery information, the description of the goods, the price per unit, the quantity per shipment as well as the number and the date of the delivery together with all related documents and data. Invoices which are incorrectly submitted shall not be deemed to have been received until the invoices are corrected.
Payment shall be made in accordance with the normal practice for the industry, either within 14 calendar days less 3% payment discount or within 30 days without any further deduction, the payment terms to be calculated from the date the goods/service are delivered and the invoice received, subject to no other agreement having been made. Payment shall be deemed to have been made on time when it can be proved that we have sent off the giro transfer or the cheque by the payment due date.
Certificates of material tests or other documentation should they have been agreed constitute an essential part of the shipment and are to be submitted to us together with the shipment. They must however be available to us at the latest 10 calendar days after our receipt of the invoice. The payment terms for the invoice shall begin with the receipt of the agreed certificates and documentation.
We are entitled, in the event of defective or incomplete shipments, to withhold a proportionate part of the payment without any loss of rebates, cash discounts or other favourable payment conditions until the shipment is properly fulfilled. Should payment for defective shipments already have been made, we are entitled to withhold other payments which have become due up to the amount of the payments already made.
Should we be in arrears with payments, we shall, in accordance with § 247 of the German Code of Civil Law and to the exclusion of further claims, pay interest at the rate of 5 percentage points above base rate.
Delivery dates, delivery delays, force majeur, earlier shipment, partial shipments, return of documents, cessation of production
The agreed delivery dates are binding and must be complied with. Relevant for compliance with the delivery date or the delivery period is the receipt by us at the reception point named by us or the successful and timely acceptance of the goods. Should the delivery period have been described or confirmed by you as being “probable”, “approximate”, “subject to the usual caveat” or the like, the difference between the delivery date named and the actual date of delivery may be no more than eight calendar days. The unqualified acceptance of a delayed shipment shall not signify that compensation claims have been waived.
Should it become clear to you that an agreed date can for whatever reasons not be complied with, you are obliged to inform us without delay and in writing, giving the reasons for and the likely length of the delay. You shall in such cases nevertheless take all necessary measures such that the agreed delivery date can be kept or that only a slight delay occurs and inform us in writing what you have done and intend to do in this particular case to assure prompt delivery. The communication of a probable delivery delay in no way alters the delivery date agreed. All costs incurred by us as a consequence of a culpable failure to inform us or of delayed information shall be borne by you.
We are entitled to the claims foreseen under law in the event of shipment delays on your part. We are then entitled, also after a reasonable period of grace set by us has elapsed, at our choice either to continue to demand the shipment/services, to declare the rescission of the order with or without claims for damages or to obtain replacement goods from a third-party and / or to claim compensation in lieu of the service ordered. Our claim to the delivery/the service is not waived until we declare in writing the rescission of the contract or demand compensation in lieu of the service ordered. Additional costs, particularly in the event of covering purchases, shall be borne by you.
The failure on our part to deliver necessary documents may only be claimed if you have demanded the documents in writing and not received them within a reasonable period of time.
Force majeur and industrial disputes relieve the contractual partners of their obligations for the duration of the disturbance and to the extent of their consequences. The contractual parties are obliged to take all reasonable steps to pass on immediately necessary information and to adapt their obligations in good faith to the changed circumstances. We are relieved from the obligation to accept, either wholly or in part, the delivery/service ordered and entitled to rescind the contract when, as a result of the delays caused by the force majeur or the industrial dispute, the delivery/service is from a commercial point of view no longer usable by us. Should these obstacles last more than three months, each contractual party is entitled without further formalities to rescind the contract.
We reserve the right in the event of an early delivery not to pay for the goods until the agreed date of payment.
We shall only accept partial shipments when this has been expressly agreed. These shipments are to be clearly marked as such in the shipment documents. The remaining quantities to be delivered shall also be stated therein.
You are required to give us immediate notice should you change or re-organise your production. You are required to ensure, in the event of cessations of production, that raw materials, supplies and trading stock in the quantities ordered by us are deliverable for a period of at least one year after production has been ceased.
Warranty, safety data sheets, period for claims, subsequent improvement, new shipment, rescission, reduction of purchase price, compensation, batch defects, warranty period, restraint, fresh start, regress
All deliveries/services are to be delivered to us free of defects of material and of title. They must be of the agreed quality and conform to the state of technology and to the relevant European and German regulations, rules and guidelines laid down by public authorities, professional associations and trade bodies, in particular those relating to the food trade. You commit that the goods delivered by you, including their packaging and containers, conform to the currently valid German and EU foodstuffs regulations and that the goods were manufactured or processed under faultless conditions and that the necessary care, hygiene and quality control (good manufacturing practice) was exercised. The deliveries/services must be suitable for the use set out in the contract. All goods shall conform to the latest safety provisions and must on delivery have been approved by the responsible test agencies and be authorised for use in the manner intended. The deliveries/services must in particular fulfil the job safety regulations, the requirements of the law on the safety of tools and products, the accident prevention and fire safety provisions as well the regulations protecting the environment. You are liable that all machines and systems bear the CE-marking and that they are in possession of an EC-conformity declaration. You are required to issue the safety data sheets pertinent at the time for your delivery. In the event that the safety data sheets are not delivered or delivered late or in a faulty manner, you shall relieve us from all regress claims made by third-parties. The same applies to all later amendments. You are required to obtain our written consent should in individual cases any departures from these regulations be necessary. This consent does not limit your liability for defects. You are required to inform us immediately and in writing should you have reservations concerning the manner of performance desired by us.
You undertake that in your deliveries/services and also in shipments and subsidiary services made by third-parties that, so far as is commercially and technically possible, you will only use environmentally-friendly products and procedures. You assume liability for the environmental compatibility of the products delivered and also for all consequential damage occurring as a result of an infringement of your legal waste disposal obligations.
We shall inform you without delay and in writing of all obvious defects as soon as they are discovered under normal operating conditions, at the latest however within five working days of our having received the goods. The period of time for reporting hidden defects is three days from the time the defect was discovered.
Defects in the delivery/service reported during the warranty period, which also includes the failure to meet specified data and the absence of assured qualities, shall be remedied by you without delay and at no cost (including ancillary costs) either – at our choice – through subsequent improvement or replacement of the defective parts of the shipment or through a new shipment. You shall bear all costs incurred in establishing and remedying the defects, also those incurred by us, in particular the costs of examination, dismantling and assembly, the costs of transport, freight, labour and material. This shall also apply should such costs be increased by the fact that the object delivered was brought to a place other than the place of fulfilment of the contract. After a period of grace set by us for subsequent improvement or replacement has elapsed without the defect being remedied, the legal remedies of rescission and price reduction are available to us. An agreed period of time allowed for subsequent performance has the same legal consequences as if we had set a time limit. It is not necessary to set a time limit in the cases provided for in § 281 section 2, § 323 section 2 and § 440 of the German Code of Civil Law (BGB); in particular, when the type of subsequent improvement desired by us is abortive. Subsequent improvement shall be deemed to have been unsuccessful when it fails at the second attempt. Subsequent improvement or a new shipment shall if necessary be effected in a multi-shift operation or through overtime or through the use of rest days and holidays, should this be necessary for urgent operating reasons on our part and can be reasonably expected of you. Should we be entitled to rescind the contract and should the non-fulfilment or unsatisfactory fulfilment of the contract be limited to a definable part of your service, then the rescission may be restricted to this part of the service allowing the remaining contract to remain in force. After the exercise of the right of rescission on account of the non-performance or inadequate performance of the service, as well as in the event of damages in lieu of the performance, we are entitled, when the service or the remainder of the service must be disposed of in some other manner and notwithstanding rights under law, to the payment of an appropriate advance to cover the anticipated costs plus an adequate safety margin. In such a case we are only required to obtain several offers when this would not lead or not threaten to lead to considerable time delays or disturbances of the operating, production or business flow. Work carried out by us shall be charged at normal third-party market rates. We reserve the right under all circumstances to pursue claims for damages.
We are entitled, should identical defects appear on more than 5% of a shipment (batch defects), to reject the whole quantity delivered and still in stock as defective and to assert both the legal and the contractually-agreed rights pertinent to claims for defective goods.
In the event of material defects, we have the right also in the case of purchase contracts, after a period of time for subsequent fulfilment set by us has elapsed without a satisfactory result, in accordance with § 637 of the German Code of Civil Law to apply measures of our own and to claim an advance payment. Should you fail to meet your obligations for the liability for defects within a reasonable period of time set by us, we may at your cost and at your risk take the necessary measures ourselves or have them performed by a third-party. In urgent cases we may, after agreement with you, undertake the subsequent improvement ourselves or have it carried out by a third-party. We may remedy minor defects ourselves – in fulfilment of our obligation to minimise the damages – without prior agreement with you and without this limiting your commitments arising from the liability for defects. We may then charge you with the necessary expenses. The same applies when unusually high damages threaten.
Should nothing to the contrary have been expressly agreed, the warranty period shall be two years. This also applies in the event of multi-shift operation. The warranty period begins with the handover of the object delivered to us or to a third-party named by us at the receiving address or utilisation location prescribed by us. In the case of appliances, machines and systems the warranty period begins on the date of acceptance named in our written declaration of acceptance. Should the acceptance be delayed for reasons for which you are not responsible, then the warranty period is two years from the date when the object delivered became available for acceptance. The warranty period for spare parts is two years from the date when they were installed/went into operation and ends at the latest four years after the shipment. It will be assumed that a defect existed already at the time when risk was passed, when not more than six months have elapsed since the date of the passing of risk, unless this assumption contradicts the nature of the product or of the defect.
As long as negotiations are being conducted as to whether the defect complained of is justified, the warranty period of the machine/machine parts in question is suspended from the time the defect is reported to the time such negotiations are concluded. The warranty period for re-worked or replacement parts or services begins with the end of the negotiations or, should an acceptance be agreed, starts to run anew from the time of acceptance. The warranty period shall however under no circumstances end before the expiry of the period of limitation for defects claims agreed for the original delivery or service.
Should claims be made against us on account of a defect in our product due to your goods, then §§ 478 and 479 of the German Code of Civil shall be applied as appropriate in our regress claims against you.
In the event of a culpable infringement of obligations going beyond the delivery of defective goods, e.g. an obligation to clarify, to advise, to investigate or some other obligation to protect the interests of others, we may also claim damages for the resulting consequential damages. Consequential damages are such damages as we or third-parties suffer as a result of the delivery of defective goods to other legal assets than the goods themselves.
Claims derived from the liability for defective goods shall not arise when the defect is due to the grossly negligent infringement of operating, maintenance or installation instructions, to inappropriate or improper use, defective or grossly negligent treatment and natural wear and tear as well as unauthorised interference with the delivery object on our part or on the part of third-parties.
You will investigate deliveries complained of as defective by us as to the causes thereof and implement measures to prevent defects of this nature arising again. You will document the remedial measures taken and submit these documents for inspection should this be demanded.
Quality assurance, product liability
Should claims be laid against us on account of an infringement of official safety regulations or of domestic or foreign product liability regulations or laws due to a defect in our product which is traceable to your goods, we are entitled to demand compensation for this damage from you to the extent that the defect was caused by goods delivered by you. This damage also includes the costs of a precautionary recall action. We shall, to the extent that this is possible and reasonable, inform you of the contents and the scope of the recall measures to be taken and give you the opportunity to make comments.
You are required to carry out quality assurance which by its nature and scope is suited to the latest state of technology and, should we request it, to prove the same to us. You will, should we consider this to be necessary, conclude an appropriate quality assurance agreement with us.
Should nothing else have been agreed, you shall mark the delivery objects such that they are permanently recognisable as your products.
You shall moreover adequately insure yourself against all risks arising from product liability, including the risk of a recall action, and, when called upon to do so, shall submit the insurance policy for inspection by us.
Liability Your claims for compensation against us, irrespective of the legal basis, shall exclude claims of minor negligence. This liability exclusion does not apply to claims for compensation based on the infringement of essential contractual obligations on our part. It also does not apply in cases of injury to life and limb and health. In cases of minor negligence in the infringement of essential contractual conditions and gross negligence on the part of ordinary company agents, compensation is limited to the payment of typical damage foreseeable at the time the contract was signed. To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, representatives and agents.
Industrial property rights, rights of use
You warrant that all shipments are free of the industrial property rights of third-parties and in particular that, through the delivery and the use of the objects delivered, patents, licences or other industrial property rights of third-parties are not infringed.
You shall indemnify us and our customers on the first occasion of being called upon in writing to do so for claims made by third-parties due to the possible infringement of industrial property rights and shall bear all the costs we incur in this connection, also the costs of possible legal actions and recall actions. Your indemnity obligation covers all costs necessarily incurred by us in connection with claims of third-parties.
We are entitled to secure at your cost the approval to use the delivered objects and services in question from those entitled to give this approval.
We shall receive from you together with the delivery of an object protected by copyright a simple and unrestricted right to make use of the same in all possible ways.
You shall assign to us, on our requesting you to do so, all claims due from your suppliers arising in connection with the infringement of obligations. Should this be required, you will deliver to us all documents necessary for the assertion of these claims.
The limitation period for the above-mentioned claims is ten years, beginning with the conclusion of the contract in question.
Partial invalidity Should individual parts of these general purchasing conditions be legally invalid, the validity of the remaining provisions is not thereby affected.
Delegation of orders only possible with consent, covenant against assignment, setting-off, right of retention, transfer of contract, change of company name
You are not entitled without our prior written consent to delegate the order or essential parts thereof to a third-party. Should this consent be given you continue to be a joint and several debtor in your relations with us.
You are not entitled without our prior written consent to assign - either wholly or in part - your receivables due from us or to have them collected by a third-party. This consent is deemed to have been granted in the event of extended reservation of title. Should you assign a receivable due from us to a third-party without our consent, then this assignment is nevertheless valid. We may opt to pay either you or the third-party and thereby fully discharge the debt.
You may only offset receivables which are not disputed or have been established by process of law.
You are only entitled to rights of retention to the extent that they are based on the same contractual relationship.
You are required to inform us immediately of every transfer of contract having the force of law and of every change in company name.
Data protection We shall treat your personal data in accordance with the German Data Protection Law.
Cessation of payments, Insolvency We are entitled, should you cease payments, a provisional insolvency administrator be appointed, insolvency proceedings be opened relating to your assets or should claims for non-payment of bills of exchange of cheques be laid against you, to terminate the contract, wholly or in part, without notice, and without this giving rise to claims against us. In the event that we terminate the contract, services performed up to that date shall only be paid for at the contractually-agreed prices to the extent that that they can be used by us according to regulations. Damages incurred by us shall be taken account of in the payment.
Place of fulfilment Should nothing else have been expressly agreed, the place of delivery for the required service is the delivery address or place of use desired by us; for all other obligations the place of fulfilment for both parties is Elmshorn. The risks of accidental loss and accidental deterioration do not pass to us until acceptance or receipt at the place of fulfilment.
Place of jurisdiction The exclusive place of jurisdiction for all present and future claims arising from the business relationship with businessmen, including claims arising from bills of exchange and cheques, is Elmshorn. The same place of jurisdiction is applicable when you do not have a general domestic place of jurisdiction or when following the conclusion of the contract you relocate your place of residence or the place where your normally reside abroad or when your place of residence or the place where your normally reside is not known at the time when legal proceedings are instituted. We reserve the right however to assert our claims at any other permissible place of jurisdiction.
Complementary law As complementary law the law of the Federal Republic of Germany shall be applicable to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980.
