General Terms and Conditions of Sale and Delivery
of A2 Trading Ltd.
1. Scope of application
1.1. These General Terms and Conditions of Sales and Delivery
shall apply to all contracts concluded between A2 Trading
Ltd. as contractor (“supplier”) and customers (“purchaser”)
such as are entrepreneurs in the sense of § 14 BGB (German
Civil Code). This shall also apply to future contractual
relationships between supplier and purchaser.
1.2. Terms of the purchaser, which are contrary to or different
from these Terms and Conditions of Sale, shall not be acknowledged
unless the supplier has expressly agreed to
their applicability in writing. These General Terms and Conditions
of Sales and Delivery shall also apply if the supplier,
being aware of the purchaser’s general terms and conditions
contrary to or deviating from these Terms and Conditions
of Sale, executed delivery to the purchaser without
reservation.
2. Conclusion of Contract and Contents of the Delivery Contract
2.1. The supplier’s offers are always subject to change.
2.2. A contract is deemed concluded only upon the supplier’s
written acceptance of the request to the purchaser or written
confirmation of the purchaser’s written declaration of
acceptance.
2.3. To the extent an order confirmation or acceptance contains
changes, extensions, restrictions or other customary
deviations from the request or the declaration of acceptance
of the purchaser, the purchaser’s consent with these
shall be regarded as given if the purchaser does not object
in writing immediately upon receipt of the confirmation or
acceptance. Purchaser’s amendments of confirmations
and acceptance of the supplier shall require the supplier’s
written confirmation in order to become part of the contract.
2.4 Decisive for determination of the delivery’s weight shall be
the shipping documents provided by the supplier.
3. Delivery, Shipment, Terms, Dates
3.1. Delivery dates shall be non-binding to the extent not expressly
stated in writing as fixed dates in the order confirmation
or declaration of acceptance. Delivery time commences
only upon the purchaser’s timely and proper fulfilment
of his obligations as well as once the supplier has
been timely, correctly and completely supplied by the subsupplier.
The defence of non-performance of the contract
against the purchaser shall be reserved.
Force majeure and other events occurring after conclusion
of the contract which are beyond the supplier’s responsibility
and which considerably complicate, delay or make impossible
the delivery (such as natural disasters, warlike operations,
strike, legal lock-outs, official measures) shall release
the supplier from his obligations under the respective
contract for the period of the event and the obstruction.
3.2. All sales are quoted ex stock, Hamburg. The purchaser shall
be obliged to either collect the goods himself or to arrange
for the dispatch / transport. The risk shall be passed to the
purchaser at the moment when the delivery note or notification
that the goods are ready for collection is sent.
If the supplier is to undertake the transport an expressed
agreement on this between purchaser and supplier is required.
If the supplier undertakes the transport the risk shall
pass to the purchaser at the moment of delivering the
goods to the carrier.
3.3. If delivery on call was agreed and if the purchaser does
not collect the goods within the period agreed upon, if no
period was agreed upon this shall mean within 2 weeks,
the supplier shall be entitled to withdraw from the contract
after unsuccessful expiration of an extension of 2 weeks.
3.4. If the purchaser does not accept the goods 2 weeks after
the will-call date agreed upon or, if no such date was
agreed upon, after the notification that the goods are
ready for collection, the supplier may claim damages. He
may, at his own discretion, either precisely charge the
damages or demand a lump sum for storage of 0.5% but
no more than 5% of the price of the delivery item per
commenced month of non-acceptance of the goods. The
purchaser shall be allowed to prove that the supplier did
not suffer any damage or considerably less damage. This
shall also apply if delivery is delayed by more than 2 weeks
at request of the purchaser.
3.5. The goods shall be regarded as accepted if the purchaser
raises no objections immediately upon receipt of the
goods, at the latest 10 days after receipt.
3.6. The supplier shall be entitled to make partial deliveries.
4. Prices and Payment
4.1. Sales prices are valid for collection ex works Hamburg and
are net prices (Euro) plus statutory Value Added Tax, customs
duties and other duties. Sales price shall be paid in
advance on the supplier’s account.
If dispatch was agreed upon the purchaser shall bear all
forwarding expenses.
In the case of listed prices the prices according to the supplier’s
list current at that time shall be considered as
agreed if no other agreement was made in writing.
4.2. If a dispatch date was agreed at more than 4 weeks after
conclusion of the contract, the supplier shall be entitled to
demand from the purchaser immediate negotiations on
adjustment of the price by those extra costs which incur
due to cost increases of his sub-supplier for raw materials,
energy, freight or wages. If no agreement is reached either
party may withdraw from the part of the contract not yet
supplied.
4.3. Payment shall be due immediately upon the invoice date.
Deduction of discounts or setoffs against such counterclaims,
which are neither acknowledged nor entitled, is
excluded. The purchaser shall have a right of retention only
insofar as it results from the same legal relationship.
5. Default of Payment of the Purchaser / Doubt about Solvency
5.1. After unsuccessful expiration of the due date, the supplier
shall be entitled to default interest of at least 8 percentage
points above the basic rate of interest or of the actually incurred
amount.
5.2. If payment by instalments has been agreed, which is only
possible in writing, the total sales price shall become due if
the purchaser falls behind with payment of one instalment.
The same shall apply if the purchaser does not collect the
goods on time to the extent payment after collection was
agreed upon.
5.3. After unsuccessful expiration of an extension of 10 days, default
of payment shall entitle the supplier, at his discretion,
to either withdraw from the contract or to claim compensation
for damages. Compensation for damages shall
amount to 10 % of the total price or to the amount of the
proved damage. Number 3.4 clause 3 shall apply accordingly.
5.4. If payment after collection was agreed upon and if after
conclusion of the contract doubts about the purchaser’s
solvency or creditworthiness arise or if the supplier has not
been aware of that before, the supplier shall have the right
to demand payment of an appropriate deposit in cash before
releasing the goods to the purchaser. If the purchaser
does not comply with that the supplier may, at his discretion,
claim compensation for damages instead of the
payment and / or withdraw from the contract.
6. Warranty / Liability
6.1. Warranty claims of the purchaser shall require that he duly
fulfilled his obligations of examination and notice according
to § 377 HGB (German Commercial Code). The purchaser
shall effect the receiving inspection within 3 days
upon receipt resp. collection of the goods. Visible defects
shall be advised to the supplier in writing within this period
of time, hidden defects within a period of 3 days upon detection.
If such notice is not given on time the goods shall
be regarded as free of defects.
6.2. In the case of a defect the supplier shall have the choice
between rectification of the defects and subsequent delivery.
The supplier shall bear the costs necessary for removal
of the defects unless rectification of the defects or
subsequent delivery will be effected at a location other
than the place of fulfilment of the delivery contract.
6.3. Excess delivery or short delivery within the scope of tolerance
customary in the trade shall not be regarded as defects.
6.4. In the case of effected partial delivery the purchaser shall
store the defective partial delivery apart from the other
partial deliveries in such way that the supplier is able to allocate
the defective delivery without any difficulty. Damages
resulting from impossibility of allocation shall be borne
by the purchaser and in this respect the supplier shall be
indemnified.
6.5. The supplier shall be liable in accordance with applicable
law to the extent the purchaser asserts claims for damages
based upon intention or gross negligence, including intention
or gross negligence of the supplier’s representatives or
assistants. To the extent the supplier is not accused of wilful
breach of contract, liability for damages shall be limited to
the foreseeable damage which typically occurs.
6.6. The supplier shall be liable in accordance with applicable
law to the extent he culpably violates a major contractual
obligation; but in this case liability for damages shall be limited
to the foreseeable damage which typically occurs.
6.7. Liability for culpable infringement of life, body or health
shall remain unaffected; this shall also apply to the compulsory
liability according to the Product Liability Act.
6.8. Liability is otherwise excluded to the extent not provided in
the foregoing.
6.9. The period of limitation for warranty claims shall be 12
months, calculated from the time of risk transfer.
6.10 . The period of limitation in the case of delivery recourse
as defined in §§ 478, 479 BGB (German Civil Code) shall
remain unaffected; such period of limitation shall be 5
years, calculated from return or in the case of collection
from receipt of the defective goods.
7. Retention of Title
7.1. The supplier shall retain full title to the goods (goods subject
to retention of title) until the purchaser has discharged all
present and future claims of the supplier for any legal reason
whatsoever. This shall also apply if a current account
between the parties is maintained.
7.2. The purchaser shall have the right to dispose of the goods
subject to retention of title within the ordinary course of
business, unless the purchaser has already ceded his claims
resulting from the resale to a third party or a case subject to
number 5.4 arises, whereby the agreement to collect is
deemed immaterial. Pledge and assignment of the goods
subject to retention of title for purposes of collateral shall
be allowed to the purchaser only upon expressed consent
of the supplier.
7.3. The purchaser hereby assigns to the supplier all claims arising
from the resale with all ancillary rights without the need
of a separate declaration of assignment. The supplier accepts
such assignment. The purchaser shall be entitled to
collect the assigned claims as long as he fulfils his contractual
obligations and no case pursuant number 5.4 arises
(regardless of the payment date agreed upon). If the purchaser’s
collection authorization is not applicable he shall
inform the supplier about all details necessary for the supplier
to collect the claim or to request return of the goods
subject to retention of title. The supplier is entitled to notify
the garnishees as to the assignment of the claim and to
collect the claim himself or to request return of the goods
subject to retention of title.
7.4. If the purchaser processes, assembles, combines or mixes
the goods subject to retention of title with goods of different
origin the supplier shall acquire co-title in the products
produced as such proportionally to the proportional value
of the goods subject to retention of title. For the processing
and assembly the purchaser shall not be entitled to remuneration.
The purchaser shall store the goods subject to retention of
title free of charge for the supplier. The purchaser shall inform
the supplier on his demand of the place of storage.
The supplier shall be enabled to mark the goods subject to
retention of title.
7.5. The purchaser shall be obliged to duly store the goods subject
to retention of title and to provide for insurance cover
against theft, water, fire, breakage and other damage.
Claims resulting from the insurance contract shall herewith
be assigned by way of security to the supplier to the
amount of the goods subject to retention of title. The supplier
shall accept the assignment.
7.6. Upon the purchaser’s request the supplier shall release such
securities as may have been rendered, at his discretion, as
far as the realizable value of the securities exceeds the
claims to be secured by at least 20%.
7.7. If in the case of delivery abroad retention of title cannot be
agreed with the same effect as in German law, but retention
of other rights to the goods subject to retention of title
is allowed, the supplier shall have the rights according to
the foreign law. The purchaser shall be obliged to render
full cooperation.
8. Place of Performance
The place of performance for all obligations of both parties
shall be Hamburg, Germany.
9. Place of Jurisdiction
The place of jurisdiction for all disputes arising from this contractual
relationship shall be Hamburg, Germany. The supplier
shall be entitled to file an action before the Court
competent for his registered office or the purchaser’s
headquarters.
10. Miscellaneous
10.1. The relationship between supplier and purchaser shall be
governed solely by German law. Application of the UN
Convention on Contracts for the International Sale of
Goods dated 11/04/1980 shall be excluded.
10.2. The purchaser agrees to processing of his personal data
necessary for the business on the part of the supplier. This
consent shall be regarded as notification in the sense of §
33 clause 1 Bundesdatenschutzgesetz (Federal Data Protection
Act).
10.3. If one or more provisions of these General Terms and
Conditions of Sale and Delivery shall be or become legally
invalid, then this shall not affect the validity of the other
provisions of the contract between supplier and purchaser.
The invalid provision shall be replaced by such valid provision
that as closely as possible reflects the economic purpose
of that provision. Alternatively, the statutory regulation
shall apply.
(as of: 12.01.2007)