General Conditions for the Sale of Goods
§ 1 Scope
These General Conditions for the Sale of Goods apply to all contracts on the delivery of goods between Hertz&Selck GmbH & Co. (Hertz&Selck) and our clients. They also apply to all contracts to be concluded in the future, regardless of whether explicit inclusion is stated in the follow-up contract. Deviating or complementing conditions of purchase for the client shall only become part of the contract if Hertz&Selck consents to their validity explicitly and in written form.
§ 2 Content of the agreement
Individual delivery requirements shall be agreed on in writing.
Samples, product specifications, formulations and similar information delivered by Hertz&Selck may only be made available to third parties with prior written consent. Upon request of Hertz&Selck, the client is obliged to conclude a separate non-disclosure agreement.
§ 3 Delivery date
Observance of the delivery date requires the prior fulfilment of all obligations of commercial and technical manner incumbent on the client (duty to co-operate). Delays on behalf of the client will postpone the delivery date accordingly.
In the case of Force Majeure or operating failures occurring at Hertz&Selck and/or a supplier which impede Hertz&Selck without any fault on its part to deliver on the agreed date, the agreed delivery dates shall be extended accordingly. In case that this leads to a delay in delivery of more than three months, Hertz&Selck and the client may both rescind from the contract by way of written declaration. Other rights of rescission shall remain unaffected.
Observance of the delivery date is subject to complete and timely supply to Hertz&Selck by its suppliers.
In case of delay, Hertz&Selck is liable in accordance with statutory regulations, provided that intention or gross negligence is held against the legal representative or one of the vicarious agents. In all other cases of delay of performance, the client’s claims for damages are, for the duration of delay, limited for each completed week to 0.5 %, yet at the maximum to 20 % of the agreed purchase price. Liability beyond this is excluded for a delivery delay attributable to Hertz&Selck.
Provided that Hertz&Selck agrees upon the client’s request to completely or partly cancel the contract, 20% of the purchase price of the respective order may be claimed as lump-sum compensation without any further substantiation. However, the client has the possibility to prove that Hertz&Selck did not suffer any or a much lower damage from the cancellation of the contract. Client cannot claim cancellation of the purchase contract.
Hertz&Selck is entitled to make partial deliveries and partial performances at any time, provided that this is reasonable for the client.
§ 4 Payment
The agreed purchase price is payable immediately upon receipt of the bill by the client, net and without any deduction, unless any other term of payment has been granted. Discounts are inadmissible.
The client is only entitled to offsetting or claiming of any rights of retention if his counterclaims have become res judicata, have been acknowledged by Hertz&Selck or are indisputable. The client may only claim right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Passing of risk, consignment, packaging
Unless agreed otherwise in the individual case, consignment is effected ex works (EXW).
§ 6 Warranty
The warranty is in accordance with statutory provisions. Specifications in the contract do not represent any guarantee of quality and/or durability.
§ 7 Conditional sale with reservation of ownership in favour of the seller until payment of the purchase price
Until all claims, including all current account balance claims, which are due to Hertz&Selck by the client now or in the future have been fulfilled, the delivered goods (goods subject to retention of title) shall remain the property of Hertz&Selck.
In case of default, Hertz&Selck is entitled, upon fruitless expiry of an appropriate deadline, to take back the goods subject to retention of title and to sell the goods on the free market. After deducting an appropriate amount for sale costs, the proceeds of the sale shall be offset with the receivables due by the client.
In the context of business operations, the client may properly sell, mix and/or process the goods subject to retention of title (Sections 948, 950 German Civil Code). The client shall already now make an assignment by way of security to Hertz&Selck of the receivables arising from the resale or on any other legal grounds (e.g. insurance, tort) with regards to the goods subject to retention of title, to a maximum of 120 % of the receivables. The client is entitled to collect the assigned receivables on its own behalf until revocation in written by Hertz&Selck, which is admissible in case of default.
If the goods subject to retention of title are processed with other items that do not belong to Hertz&Selck, Hertz&Selck obtains co-ownership in the new items, pro-rata to the value of the goods subject to retention of title (final invoice amount including VAT) in relation to the processed things at the point in time of processing. If, as a consequence of the blend, the client’s item is to be regarded as the main item the client herewith assigns pro-rata co-ownership in the item to Hertz&Selck. The thus created sole or joint property shall be kept in safe custody by the client for Hertz&Selck.
§ 8 Liability
Hertz&Selck shall be liable in case of intent or gross negligence of a legal representative, employee or vicarious agent in accordance with statutory provisions. Apart from that, Hertz&Selck shall be liable only for injury of life, body or health or due to a culpable breach of substantial contractual duties. However, the claim for compensation for the breach of substantial contractual duties is limited to the damage that is typical for the contract and foreseeable. Liability for damages to other legal goods of the client caused by the delivery item is excluded. This does not apply in the case of intent or gross negligence or injury to life, body or health.
The provision of the above stated paragraph is extended to all compensations, no matter for which legal reason, in particular due to flaws, breach of duties under the contractual obligation or tort. It applies also to the claim for compensation of futile expenses. Liability in case of default is regulated in a final manner in § 3. Liability according to the Product Liability Act remains unaffected. A change of burden of proof to the detriment of the client is not linked to the above stated provisions.
§ 9 Place of execution, venue, applicable law
The sole venue for all disputes arising between the client and Hertz&Selck from the contracts concluded is Hamburg. Hertz&Selck is entitled to sue its client also in its general place of jurisdiction or in a different legal jurisdiction.
The contractual relations between the parties are subject to German property law. The application of the uniform UN-Purchase Law (United Nations Convention on Contracts for the International Sale of Goods - CISG) is excluded.
Place of execution is the head office of Hertz&Selck.
§ 10 Relation between the English translation and the German version
The English provisions are only a translation of the General Conditions for the Sale of Goods. Only the German provisions shall be decisive. Should there be any discrepancies or problems of interpretation with this translation as compared to the German original version, the German original version of these General Conditions for the Sale of Goods and the German understanding of law shall at all events and always prevail.