General Terms of Sale and Delivery – OceanSafe GmbH
As of January 2020
1. Application of the terms
- The following Terms of Sale and Delivery (the “Terms”) apply to entrepreneurs, legal entities under public law, and special funds under public law (collectively the “Buyer”).
- We make our offers and render our deliveries and services on the exclusive basis of these Terms of Sale and Delivery. They will also apply to all future transactions with Buyer.
- Differing or contradictory conditions will not be acknowledged unless we have agreed to their application in writing.
2. Offers; Cost estimates; Order confirmation; Scope of delivery; Entering into a contract
- Any offers we make are subject to change. Any agreements entered into orally or over the telephone are invalid unless we confirm them in writing.
- The documents associated with our offers and order confirmations, such as illustrations and drawings; information on weight, materials, and dimensions; and information in brochures; are only approximations unless we expressly designate them as binding. We reserve all copyrights, author’s rights, and other proprietary rights to all tender documents. Such documents may not be made accessible to third parties. Buyer shall return all tender documents to us without undue delay at our request, provided they are no longer needed during the ordinary course of business. This also applies to all other documents, drafts, samples, templates, models, etc.
- Buyer shall pay the cost estimates.
- Orders become binding for us when we expressly confirm them in text form (including through invoices or delivery notes) or fill them, especially (but not exclusively) by shipping the goods. Otherwise, all agreements must be confirmed by us in text form. The same applies to supplements, amendments and collateral agreements.
3. Prices and payment conditions
- Unless otherwise agreed, prices apply ex works.
- Our invoices are due for payment within 30 days from the respective invoice date. If Buyer pays an invoice within 10 days from its invoice date, Buyer may deduct 2% from the net price unless the Buyer is in arrears with other invoices.
- For orders of goods, we may demand a down payment of up to 100% of the order value.
- Buyer is entitled to rights of setoff or retention only insofar as its claim is uncontested or has been finally adjudicated.
- If it becomes recognisable after the contract has been entered into that our claim to the payment is jeopardised by Buyer’s insolvency, we may refuse to perform the service we owe and either demand provision of security or specify a period for payment pari passu against delivery. If that period expires to no avail, we may withdraw from the contract and demand damages. No period needs be set if Buyer seriously and definitively refuses to pay or if special circumstances exist that justify our immediate withdrawal when considering reciprocal interests.
4. Delivery period
- Time limits and deadlines we propose for deliveries and services are always approximations unless a fixed time limit or deadline has been agreed. If shipping has been agreed, delivery periods and deadlines refer to the date of handover to the freight forwarder, freight carrier, or other third party commissioned with transport. We will comply with delivery dates only if we have received all the documents that Buyer must deliver and Buyer has complied with the agreed payment conditions and its other obligations.
- An agreed delivery period is deemed complied with if the shipment is sent or picked up within that period. If the delivery is delayed and Buyer is to blame, the time limit will be deemed met if the completion or readiness for shipment is reported within the agreed period.
- Partial deliveries are permissible to the extent that Buyer finds acceptable.
- If we are prevented from meeting our obligations by the occurrence of unforeseeable extraordinary circumstances that we could not have averted even by exercising the diligence called for by the respective circumstances (including without limitation breakdowns, official interventions, delays in the delivery of key raw materials, or difficulties in energy supply), whether those circumstances affect our factory or our upstream suppliers, the delivery period will be extended for as long as we are prevented from performing, unless the delivery or service is impossible. If those circumstances preclude the delivery or service, we will be exempt from our delivery obligation.
- The delivery period will also be extended appropriately if strikes or lockouts occur. If the delivery or service is impossible, we will be exempt from our delivery obligation. If the delivery period is extended by more than two months in the aforementioned cases, Buyer may withdraw from the contract. Buyer may not assert claims for damages.
- We may plead the circumstances mentioned here only if we have informed Buyer thereof.
5. Shipping; Transfer of risk
- Risk is transferred to Buyer on handover of the delivery object to the freight forwarder, freight carrier, or other third party nominated for the dispatch (“handover” for these purposes means when the loading procedure begins), if not before. This also applies if partial shipments are made, or if we have taken on other services (such as shipping or installation). If shipping or handover is delayed and Buyer is to blame, the risk will be transferred to Buyer as of the day on which the delivery object is ready to be shipped and we have notified Buyer thereof.
- We shall insure the shipment against theft; damage from breakage, transport, fire, or water; or other insurable risks; only on Buyer’s express request.
6. Retention of title
- The delivered goods will remain our property until all agreed prices have been paid in full, including all claims arising from the business relationship and future receivables, and until all cheques and bills of exchange have been redeemed (those goods, the “Reserved Goods”).
- Buyer may resell the Reserved Goods in the due course of business. Buyer hereby assigns to us its claims arising from the resale of the Reserved Goods, including without limitation the payment claim against its buyers. We accept this assignment. Buyer shall inform its debtors of the assignment at our request. Buyer shall inform us of its receivables and the names of its debtors.
- Buyer may collect receivables arising from the resale. If the payment is late, or if circumstances arise that in our commercial discretion are suited to lessen Buyer’s creditworthiness, we may withdraw that right of collection.
- Any processing of the Reserved Goods is deemed performed on our behalf as the manufacturer for the purposes of § 950 of the German Civil Code (“BGB”), but will not obligate us in any way. If the Reserved Goods are processed or combined with other items not belonging to us, we will acquire co-ownership of the new item in the ratio of the net invoice value of the Reserved Goods to the net invoice value the other goods had when they were processed or combined.
- Goods that are our property may not be transferred by way of security. If third parties take action against the Reserved Goods (including but not limited to seizure), Buyer shall inform them of our ownership, report the matter to us immediately, and, if applicable, send us a copy of the seizure report.
- If Buyer breaches the aforementioned obligation in accordance with § 324 BGB and behaves in a manner contrary to the contract, we may withdraw from the contract and demand the return of the goods we have delivered.
7. Purchaser’s rights regarding defects
- If the purchase constitutes a commercial transaction for Buyer, Buyer shall notify us in text form of any defects without undue delay, but no later than 12 days after the goods are received. Material defects that could not be detected within that period even with the most diligent inspection must be reported in writing without undue delay after their discovery.
- We may assign to Buyer any claims against suppliers of material third-party products. If we have made such an assignment, Buyer may hold us liable for those defects only if prior judicial recourse against the third-party suppliers fails. Prior extrajudicial recourse will be sufficient if the third-party supplier’s registered office is outside Germany. Buyer shall notify us of any recourse taken against our suppliers and, on request, shall keep us updated regarding negotiations.
- If a substantiated notice of defect is submitted, we may provide improvement or a replacement delivery, at our discretion, within a reasonable time period of 30 days. If the supplementary performance fails and the breach of contract is significant, Buyer may reduce the price or withdraw from the contract. Buyer may also demand damages or reimbursement for expenses where appropriate. If Buyer withdraws from the contract, Buyer shall return the delivery object to us.
- We are not obligated within the scope of supplementary performance to reimburse Buyer for the necessary expenses for removing the defective item and installing or attaching the improved or subsequently delivered item. Neither are we obligated within the scope of recourse against suppliers under § 445 a BGB to reimburse removal costs for defective delivery objects or installation costs for defect-free replacement deliveries. Buyer’s other recourse claims against us remain unaffected. Any right of recourse against us is also excluded if Buyer incurs increased expenses when curing a defect because Buyer or a third party subsequently moves the delivery object somewhere other than the delivery location. This does not apply if relocating the delivery object corresponds to its intended use or was agreed when the contract was entered into.
- We shall be liable for damage resulting from the delivery object’s defectiveness only if we or our vicarious agents acted intentionally or with gross negligence or breached a material contractual obligation. A contractual obligation is “material” if it must be complied with for the contract to be executed and Buyer may rely on its being met. To that end, there is no obligation to pay compensation for unforeseeable damage. The preceding restriction expressly does not apply to breaches of duty that justify liability for damage arising from injury to life, limb or health.
- Provisions of the preceding item 4 that limit liability do not apply if we have guaranteed that the delivery object will have certain characteristics. Claims under the Product Liability Act remain unaffected.
- We are not liable for the goods’ suitability for the purpose Buyer intends unless that purpose has become a contract component.
- Defective goods may be returned only after Buyer gives us written notice stating the article, quantity, and reason for the return, and we confirm that notice in writing. If no such written notice is given in advance, we may refuse acceptance. Returns < 7.5 m are non-refundable.
8. Limitation of liability; Damages
- We shall pay compensation for damage caused by intent or gross negligence, regardless of legal grounds. In the event of ordinary negligence, we shall be liable only for a) damage resulting from injury to life, limb or health, or b) damage resulting from the breach of a material contractual obligation (a contractual obligation is “essential” if it makes proper contract execution possible in the first place and Buyer normally relies, and may normally rely, on it being complied with). The restrictions of liability do not apply if we maliciously conceal a defect or have guaranteed that the delivery object will have certain characteristics. Neither do the restrictions of liability apply to Buyer’s claims under the Product Liability Act.
- Insofar as we are liable under the preceding item for compensation on the merits, that liability will be limited to damage that we foresaw – or ought to have foreseen if we had exercised customary diligence – as a possible consequence of a breach of contract when we entered this agreement. Indirect damage and consequential damage ensuing from defects of the delivery object are also compensable only if they can be typically expected when the delivery object is used as intended.
- Buyer may withdraw or terminate due to a breach of duty not associated with a defect only if we are responsible for that breach of duty. Otherwise, the statutory requirements and legal consequences will apply.
- In the event of default, Buyer’s claim to damages is limited to 5% of the new purchase price, unless we caused the delay in delivery intentionally or with gross negligence.
9. Statute of limitation
- By way of derogation from § 438(1)(3) BGB, the general limitation period for claims due to material defects or defects of title amounts to one year from delivery. If an inspection and acceptance procedure has been agreed, the limitation period will begin with acceptance.
- If the delivery object is used for a building, in accordance with its normal use, and causes that building’s defectiveness (building material), the limitation period will be five years from delivery. Other special statutory regulations governing the limitation period, including without limitation § 438(1)(1), § 438(3), § 444, and § 445(b) BGB, also remain unaffected.
- The limitation periods under sales contract law also apply to Buyer’s contractual and non-contractual claims arising from defective goods, unless applying the normal statutory limitation period under §§ 195 and 199 BGB would lead to a shorter limitation period in an individual case.
- The limitation periods of the Product Liability Act remain unaffected. Claims for damage arising from the injury to life, limb or health will become time-barred in accordance with the statutory limitation periods.
10. Place of fulfilment; Forum; Applicable law
The place of fulfilment for all obligations arising from the contractual relationship is Krefeld. If Buyer is a merchant, a legal entity under public law, or a special fund under public law, the forum for disputes arising from the contractual relationship is Krefeld. However, we may bring an action at the court having competence for Buyer’s registered office. Only German law will apply, under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention) from 11 April 1980.