General Delivery Conditions for NH NUSS-HANSA GmbH
§ 1 Area of Applicability and WVB
(1) All deliveries, services and offers of NH NUSS-HANSA GmbH (hereinafter “Seller”) are exclusively processed based on these General Delivery Conditions. The aforementioned are also a component of all contracts entered by the seller with its contractual partners (hereinafter “Buyer“) with regard to the services and deliveries provided by the seller. The aforementioned shall also apply for all future deliveries, services and proposals made to the buyer, unless agreed upon on a separate basis.
(2) The buyer’s or third party business conditions shall not apply, including if the seller references correspondence containing and/or not contradicting the validity of the buyer’s or third party business conditions. The buyer’s or third party business conditions shall not apply, even if the seller does not object to the aforementioned on a case-by-case basis. Even if the seller references a correspondence including the buyer’s or third party business conditions or makes reference to the aforementioned it does not constitute an agreement to the validity of these business conditions.
(3) The “business conditions” of the Waren-Verein der Hamburger Börse e.V. (WVB) in its respectively valid version upon contract execution shall additionally apply to the extent these conditions are not modified or supplemented by the following and superseding conditions of these general delivery conditions. WVB may be reviewed at https: //www.waren-verein.de/.
§ 2 Proposal and Contract Execution
(1) All of the seller’s proposals are subject to change and non-binding, unless explicitly indicated as binding, or if containing a specific acceptance term.
(2) The written sales contract as such, including the General Terms and Conditions, shall be the relevant legal relationship between the seller and the buyer. The contract reflects any and all agreements between the contractual parties. Verbal agreements between the parties shall be replaced by the written contract.
(3) Addenda and amendments to the agreed upon terms and these General Terms and Conditions shall require the written form for validity. Electronic transfer, such as via fax or e-mail shall be sufficient as the written form, if a signed copy of the contract is forthcoming.
§ 3 Prices and Payments
(1) The prices shall be valid for the service and delivery volume listed in the order confirmation. Additional or special services will be billed separately. The prices are listed in EURO/USD on equal terms with the contract, plus the statutory value-added-tax.
(2) The invoice amounts shall be due for payment within 14 days without deductions, unless otherwise agreed upon in writing. The date payment has been received by the seller shall apply. If the buyer has not rendered payment by the due date, the amount in arrears shall be subject to 9% default tax above the base interest rate p.a., effective the due date; the entitlement for higher taxation and additional damage claims shall remain unaffected.
(3) Offsetting with the buyer’s counter-claims or retaining payments as a result of such claims are only permissible to the extent the counter-claims have been indisputably and legally determined.
(4) The seller is entitled to implement or provide pending services or deliveries only upon pre-payment or a security if he should become aware of circumstances significantly decreasing the buyer’s solvency/creditworthiness and if these circumstances could potentially jeopardize the buyer’s ability to render payment of pending receivables to the seller from the applicable contractual relationship (including from other individual contracts subject to the same framework contract).
(5) The seller is entitled to reserve the right of accurate and timely receipt of his own shipments.
§ 4 Deliveries and Delivery Timeframes
(1) Deliveries are free of charge / DDP, unless otherwise agreed upon.
(2) The tentative terms and dates provided by the seller for deliveries and services only apply to a certain extent, unless a fixed term or a fixed date has been explicitly confirmed or agreed to. Insofar shipping has been agreed upon, the delivery term and time references to the date the shipment is delivered to the buyer.
(3) Regardless of seller’s rights resulting from the buyer’s arrears, the seller may request an extension of the delivery and service dates or a change of the delivery and service dates for the timeframe the buyer does not comply with his contractual obligations.
(4) The seller is not liable for impossible deliveries or delivery delay, if the aforementioned are the direct result of force majeure or other events unforeseeable at the time of contract execution (e.g. operational disruptions of any kind, allocation issues for materials or power, transportation delays, strikes, statutory lockout periods, lack of staff/laborers, energy and raw materials, difficulties with obtaining the required official permits, official measures or non-deliveries, incorrect deliveries or delayed deliveries of shipments from the supplier) to the extent the seller is not responsible for such. If such events negatively affect the provision of deliveries and services in an unfeasible manner, or render it impossible and if the obstruction is not only temporary, the seller is entitled to withdraw from the contract. In the event the obstructions are temporary, the delivery and service terms shall be extended or changed for the period of time required by the timeframe of the obstruction and an appropriate startup period.
(5) The seller is only entitled to partial deliveries, if
- the buyer is able to utilize the partial delivery within the scope of the contractual purpose,
- the delivery of the remaining goods ordered is secured and
- the buyer is not subjected to significant additional efforts or additional expenses (unless the seller agrees to cover these costs).
(6) If the seller should default on a delivery or service, or if the delivery or service provision should be impossible regardless of the reason, the seller’s liability for damage reimbursement is limited in accordance with § 7 of these general delivery conditions.
§ 5 Place of Fulfillment, Shipping, Packaging, Assumption of Risk, Acceptance
(1) Place of fulfillment for all contractual obligations is Hamburg, unless otherwise agreed upon.
(2) The shipping method and packaging are subject to the obligatory diligent discretion of the seller.
(3) The risk is transferred to the buyer not later than the time the object of delivery is handed over to the transportation company, freight manager, or other third parties commissioned to implement the shipment (whereby the loading process shall be relevant). This shall also apply for partial deliveries, or if the seller has agreed to provide other services as well (e.g. shipping).
(4) The buyer shall be responsible for storage costs after the assumption of risk.
(5) If an acceptance process must take place, the purchased object is considered accepted when the delivery to the buyer has been completed.
§ 6 Warranty, Material Damages
(1) The warranty period shall apply according to the best-before date listed, insofar the storage conditions at the customer’s warehouse have been met.
(2) The goods delivered must be carefully inspected by the designated third party immediately upon delivery to the buyer. With regard to obvious deficiencies or other deficiencies which would have been noticeable upon an immediate and careful inspection of the goods, the goods are considered as accepted by the buyer if the seller does not receive a written compliant within three business days after delivery. With regard to other deficiencies, the goods are considered as accepted by the buyer if the seller does not receive a written complaint within three business days from the date the deficiency has been determined; if the deficiency has been apparent to the buyer during normal use at an earlier time, the earlier date shall apply as the reporting date. Upon the seller’s request the rejected goods must be returned to the seller free of charge. If the complaint is justified, the seller shall credit the cost of the most cost-effective shipping method available; the aforementioned does not apply if the cost increases because the goods are located at a different location than the location of the relevant use.
(3) In case of material deficiencies regarding the goods delivered, the seller is obligated and entitled to eliminate the deficiency, or provide a replacement within an appropriate grace period at his discretion. Upon failure, more specifically, impossibility, unfeasibility, rejection, or inadequate delays of the attempt to eliminate the deficiency, or provide a replacement, the buyer may withdraw from the contract or decrease the purchase price accordingly.
(4) The warranty does not apply if the buyer alters/modifies the goods, or has the goods altered/modified by a third party without the seller’s consent and as a result, the elimination of the deficiency is therefore rendered impossible or unfeasibly difficult.
§ 7 Damage Liability due to Culpable Conduct
(1) The seller’s liability for damages is limited, regardless of the legal reason, particularly due to impossibility, default, defective or incorrect shipment, contractual violation, obligation violations during contract negotiations and improper actions, to the extent culpable conduct according to this § 7 is involved.
(2) The seller shall not be liable in cases of minor negligence committed by his organs, legal representatives, staff or other subcontractors, provided relevant contractual obligations have not been violated. The obligation to deliver the contractual object on timely basis, its freedom of defects, as well as such material deficiencies which would significantly affect its usability, as well as advisory, protective and custodial obligations which should enable the buyer to use the contractual goods delivered or achieve the protection of the buyer’s staff’s body or life, or protect the property from significant damages.
(3) To the extent the seller is liable for damages pursuant to § 7 (2), his liability shall be limited to damages the seller should have determined as a potential consequence prior to contract execution or should have been able to determine upon exercising due diligence. Direct damages and subsequent damages of the goods are also only subject to the replacement of goods to the extent these type of damages could have been typically anticipated with the appropriate use of the goods.
(4) The aforementioned liability exclusions and limitations shall equally apply for the seller’s organs, legal representatives, staff and other subcontractors.
(5) The restrictions pursuant to this § 7 shall not apply to the seller’s liability resulting from intentional conduct, for guaranteed condition characteristics, injury to life and body or health, or in accordance with the Product Liability Act.
§ 8 Reservation of Ownership
(1) The agreed upon reservation of ownership below shall secure all respective current and future claims by the seller against buyer in accordance with the contractual partners’ delivery relations (including outstanding balances of current account liabilities limited to these delivery relations).
(2) The goods delivered to the buyer by the seller shall remain the seller’s property until payment of all secured receivables has been rendered. The goods, as well as the goods subject to reservation of ownership as identified in the provisions below, shall be referred to as “conditional goods”.
(3) The buyer shall store the conditional goods for the seller free of charge.
(4) The buyer is entitled to process and sell the conditional goods up to the designated expiration date (paragraph 9) within the scope of proper business procedures. Assignment and transferring the securities is prohibited.
(5) If the conditional goods are processed by the buyer, it shall be agreed upon that the processing and billing procedures shall be implemented in the seller’s name as the manufacturer, and that the seller shall be entitled to direct ownership rights to the new material asset, or if processing material goods of multiple owners should result in a greater value than the value of the conditional goods in question, the co-ownership (partial value) on the new property should benefit the seller. In the event the seller should not be the beneficiary of such an ownership, the buyer shall agree now to the future property entitlement; or, as stated above, to the co-ownership on the newly created items as a security for the seller. If the conditional goods are combined with other goods as an integral item or if it is combined in a non-separable manner, and the other item is to be considered the primary item, the seller shall transfer the pro-rated ownership of the primary item to the buyer to the extent he is the primary owner of the item listed in relation to sentence 1.
(6) In the event that the conditional goods are sold, the buyer, as a security measure, shall assign the rights resulting thereof to the accounts receivable from the purchaser to the seller immediately. This shall also apply for other claims regarding the conditional goods, such as insurance claim entitlements or claims resulting from inappropriate actions upon loss or destruction. The seller shall irrevocably authorize the buyer to collect the receivables due the seller under his own name. The seller may only revoke this authorization if the goods are subject to an expiration date.
(7) If third parties should claim the conditional goods, in particular by the method of assignment, the buyer will immediately advise the parties of the seller’s ownership, and notify the seller accordingly in an effort to enable him to assert ownership. Insofar the third parties are not able to reimburse the seller for the incurred legal or extra-judicial costs, the buyer is liable to the seller for the reimbursing of these fees. The seller shall release the conditional goods and the future items or claims, insofar the value should exceed the secured claims by more than 50 %. Selecting the items to be released is at the seller’s discretion. In the event the seller should be entitled to withdraw from the contract due to contractual violations (expiration date case), committed by the buyer, particularly for defaulting in payments, the seller is entitled to demand the return of the conditional goods.
§ 9 Final Provisions
(1) If the buyer is a proper business person, judicial entity under public law or special fund under public law, or if he does not have a legal domicile in the Federal Republic of Germany, the legal venue for all disputes between the seller and the buyer resulting from this contract shall be Hamburg. However, in these cases, Hamburg shall be the exclusive legal venue for any and all claims against the seller. Mandated statutory regulations regarding the exclusive legal venues shall remain unaffected by this regulation.
(2) The relations between the seller and the buyer are exclusively subject to the law for the German Federal Republic. The Treaty of the United Nations on contracts regarding the international sales of goods (CISG), dated April 11, 1980, shall not apply.
(3) Insofar the contract or these general delivery conditions should contain regulatory gaps, the legally valid regulations the contractual partners would have agreed upon to achieve the economic goal of this contract and the purpose of these general delivery conditions had they been aware of the contractual gap, shall be considered to have been agreed upon to close these gaps.
The buyer acknowledges and agrees that the seller will store his data for data processing purposes pursuant to the applicable data protection laws (among others the EU-GDPR / EU-DSGVO and the German Federal Data Protection Act /BDSG) and reserves the right to disclose the data to third parties (e.g. insurance companies) exclusively within the scope of what is necessary to fulfill contracts.