General Terms and Conditions (Terms and Conditions of Delivery) of C. Hermann Gross Metallwarenfabrik KG, Nassau

1. Preamble

All agreements and quotes are subject to our terms and conditions; they are accepted through placing an order or accepting the delivery or performance.
Unless they are expressly accepted by us in writing, any divergent terms and conditions of the customer are not binding on us, including in those cases where we do not expressly object to them.

2. Delivery time

The agreed delivery time is only deemed to be approximate. The delivery period starts with the date that the order confirmation is sent and it is met if the goods have left our premises or in the case of other shipment options if notification has been provided that the goods are ready for shipment by the end of the delivery period. This is subject to correct and timely delivery by our suppliers. The delivery period shall be reasonably extended – including within the framework of default of delivery – in the event that unforeseen obstacles occur which we were unable to avert despite reasonable care under the circumstances of the case.

3. Prices and payment

a) Prices: Orders will be charged at the list prices applicable on the date of delivery unless fixed prices are expressly agreed.

b) Payment: Interest of 5.0% above the discount rate of the Deutsche Bundesbank will be charged in the event that payment terms are not met. We reserve the right to assert claims for greater damage caused by default. A discount will only be granted if this is expressly agreed in writing upon entering into the contract.

4. Transfer of risk

If the goods are sent to the customer at the latter’s request then the risk of accidental destruction or accidental deterioration of the goods shall pass to the customer upon delivery by us to the appointed carrier, and in any case no later than the point in time that the goods leave our premises, irrespective of whether the shipment takes place from the place of fulfilment and of who is responsible for the freight costs.

5. Retention of title

The goods delivered shall remain our property until all of the claims from the business relationship between us and the customer are paid in full. The allocation of individual claims to an open account and establishment of the balance with recognition of this shall not affect the retention of title. Payment shall only be deemed to have been received once we have received the counter value.
The customer shall be entitled to resell the goods subject to the retention of title in the normal course of business. However, the customer shall be under an obligation to secure our rights with any resale of the goods subject to the retention of title. The customer hereby assigns to us their claims from the resale of the goods subject to the retention of title, and we accept this assignment.
The customer shall be entitled to collect the claims provided that they meet their obligations to us and do not become insolvent. At our request the customer must provide the information on the assigned claims which is required to collect the claims and communicate the assignment to the debtors. Any processing or treatment of the goods subject to the retention of title shall be completed by the customer on our behalf without any obligations arising for us from this. In the event that the goods subject to the retention of title are processed, combined, mixed or amalgamated with other goods which do not belong to us, we shall be entitled to co-ownership of the new item at the ratio of the invoice value of the goods subject to the retention of title to the other processed goods at the time of processing, combination, mixture or amalgamation. If the goods subject to the retention of title are resold with other goods, irrespective of whether this does not include or of whether this follows processing, combination, mixture or amalgamation, then the prior assignment agreed above shall only apply for the amount of the invoice value of the goods subject to the retention of title which are resold together with the other goods. The customer must inform us without delay of any possible third-party compulsory enforcement measures related to the goods subject to the retention of title or to the claims assigned beforehand, indicating the documentation required for any intervention.

6. Warranty, liability and notification of

a) Warranty claims related to material defects: If the item delivered is defective or if it lacks warranted features or if it becomes defective within the warranty period, then we shall at our discretion be required to provide a replacement or to repair the item, with any further warranty claims of the customer excluded. The determination of defects of this type must be communicated to us in writing without delay – for readily identifiable defects this must be no later than within three days following acceptance, or without delay following their identification in the case of defects which are not readily identifiable. The warranty period shall start with the delivery of the goods to the customer; however, it shall end no later than six months after the goods have left our premises.

b) Other claims for compensation: We shall be liable for damage which is attributable to intentional or grossly negligent conduct on our part or the part of one of our executive staff members.
Claims for compensation for impossibility of performance, default, positive breach of a contractual obligation, culpability when entering into the contract or under tort are excluded. In such cases the customer shall have a right of withdrawal from the contract with all other claims excluded, including those stated under a).

c) Right to refuse performance, right to withhold and right of offset: In the event that counter-claims by the customer are accepted by us or are determined in a court of law then the customer may offset their counter-claims against our claims or refuse or withhold performance. If the counter-claims have not been accepted by us or have not been determined in a court of law, the customer may not use their counter-claims to refuse or withhold performance or offset it against these counter-claims.

7. Force majeure

In the event that we are obstructed in our efforts to fulfil our obligations as a result of unforeseeable exceptional circumstances which we were unable to avert despite reasonable care under the circumstances of the case, irrespective of whether these occur within our business or at our own suppliers, then the delivery period shall be extended for a reasonable amount of time unless the delivery or performance becomes impossible. If the delivery or performance becomes impossible then we shall be released from our obligations to deliver.

8. Place of fulfilment and of jurisdiction

The place of fulfilment for all obligations from the contractual relationship is our registered place of business. The place of jurisdiction for all legal disputes arising from the contractual relationship or regarding its origin or effectiveness will be determined by our place of business, or at our discretion additionally by the customer’s registered place of business.