Terms and Conditions of Nordgreif GmbH
Dannenkamp 9 – 11
22869 Schenefeld / Hamburg
Rev. 00, 10th August 2022
Nordgreif GmbH (following also „we“, „us“)
1.0 Scope of application
1.1 The offers of Nordgreif GmbH are exclusively directed to entrepreneurs as defined by § 14 BGB (German Civil Code), legal entities under public law or special funds under public law. All contracts are exclusively subject to our following General Terms and Conditions (GTC) in the form valid at the time of conclusion of the contract. We do not recognize any terms and conditions of the customer that are contrary to or deviate from our GTC and whose validity we have not expressly agreed to in writing. Our GTC shall also apply to all future transactions with the customer.
Deviating individual agreements in offers of Nordgreif GmbH and order confirmations shall take precedence over these GTC. In all other respects, these GTC shall always apply in addition, insofar as no special regulation has been agreed.
2.0 Conclusion of contract, documents
2.1 Offers made by us are always subject to change. Deviations from this shall only occur if we expressly indicate this in the offer in the individual case. Unless expressly stated otherwise, a binding offer is subject to acceptance within 14 days.
2.2 Orders from the customer to us must always be submitted in writing and with reference to our offer. Orders placed by telephone or in other forms shall only be deemed accepted if confirmed by us in writing.
2.3 In the absence of a special agreement, a contract shall only be concluded upon our written order confirmation.
2.4 The customer is hereby informed that the cost calculation may change after the order has been placed. In this case, we shall submit a new and limited offer to the customer which takes into account the changed cost situation. If (exceptionally) a contract has already been concluded as a result of the order being placed, we shall be entitled to withdraw from the contract without delay and shall also submit such an offer. Clauses 2.2 and 2.3 shall apply to the conclusion of the contract.
2.5 In addition to our offer and our order confirmation, these GTC constitute the complete agreement on the subject matter of the contract (goods) and replace any previous agreements thereon.
3.0 Prices / Packaging and shipping costs
3.1 Subject to clause 3.3, the prices at the time the order is placed shall apply. Unless otherwise stated in the order confirmation, our prices are per delivery unit net ex works, excluding packaging, value assurance and shipping costs, plus statutory VAT, which shall be shown separately in the invoice.
3.2 Shipping and packaging shall be carried out by us at our reasonable discretion. The unobjected acceptance of the goods by the forwarding agent, carrier or consignee shall suffice as proof of correct packaging.
3.3 If the market or purchase prices of the materials, the packaging or shipping costs for the manufacture of the goods change by more than 5% at the time of the technical approval declaration or thereafter at the time of execution, the contractual material, packaging or shipping prices shall change accordingly, provided that the change is demonstrably not due to circumstances for which we are unilaterally responsible. This applies equally to increases and decreases. Alternatively, the contracting parties shall each have the right to withdraw from the contract in the aforementioned cases. We shall
4.0 Terms of payment / set-off
4.1 Our invoices are payable within 30 days of the invoice date, unless otherwise stipulated in the order confirmation. Even without a reminder, default shall occur after 30 days from receipt of the invoice. If the customer is in default of payment, we shall be entitled to claim default interest at the statutory rate as well as the statutory flat-rate default fee, whereby we reserve the right to also claim higher default damages. A lump-sum default fee paid shall be set off against the damage caused by default insofar as this is justified by the costs of legal action.
4.2 We shall be entitled to demand advance payments from the customer prior to delivery of the goods.
4.3 Checks and bills of exchange shall only be accepted as performance in lieu of performance. Bills of exchange must be discountable. Discount and collection charges shall be borne by the customer and shall be due immediately upon invoicing without deduction.
4.4 The customer may only offset against our claims for payment if his counterclaims have been legally established, are undisputed or expressly recognized by us or are based on poor performance.
4.5 In accordance with the statutory provisions, we shall be entitled to refuse performance and, if the statutory requirements are met, to withdraw from the contract if it becomes apparent after it has been concluded that the claim to the purchase price is at risk due to the Purchaser’s inability to perform.
5.0 Delivery and delay
5.1 The commencement of a delivery period or a delivery period confirmed by us requires the clarification of all commercial and technical issues. The delivery period or a delivery period shall therefore not commence until the technical declaration of approval has been issued by the Purchaser.
Compliance with the delivery periods and delivery times by us further presupposes that the purchaser has fulfilled all contractual and statutory obligations incumbent upon him, such as the provision of documents, approvals and releases or the making of a down payment/pre-payment. If this is not the case, the delivery time/delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay.
5.2 Our delivery obligation is subject to complete and correct self-delivery, unless the non-delivery or delay is our fault. Should the self-supply delay the manufacture of the goods by more than three months, the contracting parties shall each have the right to terminate the contract. If we have already rendered a contractually agreed partial performance prior to termination, we may demand reasonable compensation for this partial performance. However, we shall have to take into account any expenses saved as a result of the termination of the contract or acquired through other use of our labor. Any partial services rendered shall be returned to the customer or shall remain with the customer. We shall inform the customer in good time of any foreseeable delays.
5.3 The delivery period shall be deemed to have been met if the goods have left our works or notification of readiness for dispatch has been given by the time the delivery period expires. If acceptance is to take place prior to delivery, the acceptance date shall be decisive, alternatively the notification of readiness for acceptance.
5.4 If shipment or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs incurred by the delay, in particular for storage, shall be charged to the Purchaser, starting one month after notification of readiness for shipment/acceptance. In the case of storage in our works, we may charge 0.5% of the invoice amount per month or part thereof, but not more than 10% of the contract value of the goods not accepted. The customer shall be at liberty to prove lower storage costs. Further claims shall remain unaffected.
5.5 In the event of a delay in delivery, the Purchaser may set a reasonable grace period of at least 2 weeks together with a threat of refusal and may only withdraw from the contract after expiry of the grace period.
5.6 If the customer is in default of acceptance or if he violates other duties to cooperate, we shall be entitled to claim the damage incurred by us including any additional expenses. At the same time, the risk of accidental loss or accidental deterioration of the ordered goods shall pass to him at the beginning of the default in acceptance.
5.7 The documents belonging to the offer and therefore – with the exception of binding information – information such as illustrations, descriptions and drawings, dimensional and weight specifications as well as technical values are only approximately authoritative. We reserve the right to deviations customary in the trade for all goods.
5.8 We shall be entitled to make reasonable partial deliveries.
5.9 The assumption of the transport costs results from the contractual and legal provisions with the handover to the carrier.
6.0 Transfer of risk, acceptance
6.1 The risk shall pass to the Purchaser when the delivery item has left the factory, even if partial deliveries are made or we have assumed other services, e.g. shipping costs or delivery and installation. Insofar as acceptance is to take place, this shall be decisive for the passing of risk. It must be carried out without delay on the acceptance date, alternatively after we have notified the customer that the goods are ready for acceptance. The Purchaser may not refuse acceptance in the event of a non-substantial defect.
6.2 Any insurance of the goods for their transport shall only be taken out at the express request and expense of the Purchaser.
6.3 If shipment or acceptance is delayed or does not take place due to circumstances for which we are not responsible, the risk shall pass to the customer on the date of notification of readiness for shipment or acceptance.
7.0 Warranty claims
7.1 Subsequent performance
7.1.1 If the newly manufactured goods delivered by us are defective, the customer may demand subsequent performance. In this context, we reserve the right to choose between rectification of the defect or replacement delivery of a defect-free item. If parts are replaced during the rectification of defects, the removed parts shall automatically become our property.
7.1.2 After consultation with us, the customer shall grant us the necessary time and opportunity to carry out all repairs and/or replacement deliveries that we deem necessary. Only in urgent cases, e.g. if operational safety is endangered or to prevent disproportionately large damage, in which case we must be notified immediately, shall the customer have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from us.
7.1.3 If a claim is made against us by the Purchaser by way of recourse after the Purchaser itself has been held liable for the defects by its customer, Section 445a of the German Civil Code shall apply to the enforcement of rights.
7.1.4 We shall be entitled to supply the Purchaser with spare parts of equivalent quality instead of original spare parts if the original parts are no longer available. This shall also apply in particular in the event of discontinuation of the production of contractual items.
7.1.5 Of the costs arising from the repair or replacement delivery, we shall bear, insofar as the complaint is justified, the costs of the replacement part or the repair of the defective component and the costs for installation and removal as well as for transport and disposal.
However, a claim against us in respect of the removal and installation services pursuant to Section 439 (3) sentence 1 of the German Civil Code (BGB) shall be excluded if the customer has either installed the defective item himself or has had it installed by a third party with knowledge of the defect. The same shall apply if the Purchaser remained unaware of the defect prior to or at the time of installation of the item due to gross negligence. In this case, the customer may only assert claims if and to the extent that we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item affected by the defect.
In any case, we shall have the right to choose either to carry out the removal and installation together with the disposal ourselves or to reimburse the reasonable expenses instead, unless the customer can assert an interest worthy of priority protection in either carrying out the removal and installation himself or having it carried out by a work contractor engaged by him.
When assessing whether the expenses – in particular for transport – are reasonable, the contractually agreed or foreseeable place of performance shall be taken into account. If the customer unforeseeably undertakes the installation of the goods delivered by us at a remote location, we shall accordingly only have to reimburse the expenses that would have been incurred if the installation had taken place at the contractually agreed place of performance or the foreseeable place of installation.
7.2 Any further claims for rescission, reduction of the purchase price or damages shall be excluded, unless subsequent performance fails. If the Purchaser chooses to claim damages after subsequent performance has failed, the goods shall remain with the Purchaser if this is reasonable for the Purchaser. The compensation shall then be limited to the difference between the purchase price and the value of the defective goods. This shall not apply if we have fraudulently caused the breach of contract.
7.3 No warranty shall be assumed in particular in the following cases:
- Unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless they are attributable to a fault on our part.
- Rectification of the goods by the purchaser or by a third party commissioned by him. However, the Purchaser shall retain warranty claims and rights if it proves that the above circumstances were not causal for the damage that occurred;
- The Purchaser invokes as a reason for the warranty that the goods do not meet its expectations in terms of their condition, quality and functionality, unless an express agreement has been made regarding the condition, quality or functionality or the goods – in the absence of an express agreement – do not meet the objective requirements within the meaning of Section 434 (3) of the German Civil Code (BGB).
7.4 In the event of merely insignificant defects, the Purchaser’s right to rescind the contract shall be excluded. In this case, the Purchaser shall only be entitled to a reduction of the contract price and to statutory damages.
7.5 We shall not be liable to the Purchaser for properties which the Purchaser expects according to public statements made by the Seller or the manufacturer or their assistants, in particular in advertising, unless such statements establishing properties are expressly confirmed by us in writing.
7.6 Unless expressly agreed in writing, we do not assume any guarantee of quality or durability.
7.7 We shall not assume any liability for defective operating and assembly instructions of suppliers and other companies, unless a grossly negligent breach of duty is proven against us in this respect.
7.8 The statutory provisions shall apply to the obligation to inspect and give notice of defects. Any waiver of the commercial obligation to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB) by the Purchaser is expressly rejected. The Purchaser shall subject the goods to a full incoming goods inspection.
We shall be liable, irrespective of the legal grounds, without limitation in the event of intent and gross negligence.
In the event of simple negligence, we shall only be liable for
- for damages resulting from injury to life, body or health (personal injury),
- for damages resulting from the breach of an essential contractual obligation; liability is then – with the exception of personal injury – however limited to compensation for the foreseeable, typically occurring damage. Material contractual obligations are obligations the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the Purchaser regularly relies and may rely.
The aforementioned limitations of liability shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. Our liability under the Product Liability Act shall also remain unaffected.
9.0 Force majeure
9.1 If, due to force majeure, the manufacture of the goods or the delivery of the goods is temporarily not possible, the mutual performance obligations shall be suspended during this period. In particular, any agreed compensation for delay and other claims arising from delay shall be suspended for the duration of the disruptive influence. This shall also apply if we are already in default. This suspension shall apply until the impediment to performance ceases to exist; subsequently, the affected performance shall be made good within the agreed period plus the period of force majeure. Should the disruptive influence resulting from force majeure last longer than three months, the contracting parties shall jointly decide whether and how the contract should be continued. If no solution is found, each contracting party shall have the right to terminate the contract. In the event of termination, Clause 5.2, Sentences 3 to 5 shall apply accordingly.
9.2 Force majeure is an external event caused by elementary forces of nature or by actions of third parties, which is unforeseeable according to human insight and experience, which cannot be prevented or rendered harmless by economically acceptable means, even by the utmost care reasonably to be expected in the circumstances, and which is not to be accepted by us because of its frequency. Force majeure may exist in particular in the event of war, civil unrest, terrorism, natural disasters such as earthquakes and floods, epidemics, industrial action by third parties, traffic accidents or significant operational disruptions, embargo or statutory or official orders. This shall apply irrespective of whether the force majeure occurs with us or our suppliers.
9.3 The contracting party affected by force majeure shall notify the other contracting party of this circumstance and the expected duration of the impediment to performance as soon as this is practically possible for it.
9.4 The right to withdraw from the contract for good cause shall remain unaffected.
10.0 Limitation period
10.1 Unless a shorter limitation period has been agreed individually between the contracting parties, the warranty period for claims for defects in newly manufactured goods shall be two years. This shall not apply to the limitation of claims for damages due to injury to life, body or health, insofar as these damages are based on a negligent or intentional breach of duty attributable to us and proven, as well as due to the Product Liability Act.
10.2 In the case of claims for warranty for defects asserted against us by the Purchaser by way of recourse pursuant to § 445a of the German Civil Code (BGB), the limitation provision of § 445b of the German Civil Code (BGB) shall apply without limitation.
11.0 Industrial property rights, copyrights, secrecy
11.1 All rights to patents, utility models and designs, trademarks and other industrial property rights as well as copyrights for the goods, software and documents shall remain with the holders of the rights. This shall also apply in particular to cost estimates, drawings, plans, samples and other documents of a tangible and intangible nature, including in electronic form, product designations and other rights to names and trademarks.
The customer may not make these documents available to third parties without our written consent. They shall be deemed confidential even if they are not expressly marked as confidential. Upon request, these documents shall be returned to us or deleted without delay. We undertake to make information and documents designated as confidential by the customer available to third parties only with the customer’s consent.
11.2 The Purchaser undertakes to treat as business secrets all commercial and technical details which are not in the public domain and which become known to him through the business relationship, even if such information or documents are not expressly marked as confidential.
11.3 Drawings, plans, software, devices, models, samples and similar objects or documents delivered, used or made available by or for us are and remain our property. They may not be handed over or otherwise made accessible to unauthorized third parties. If the aforementioned items and documents are manufactured for us, they shall become our property as soon as they are created or manufactured. The reproduction of such items is only permitted within the scope of operational requirements and the provisions of patent law, trademark law, copyright law and competition law.
11.4 § 5 Geschäfts Geheimnis Gesetz = Business Secrets Act remains unaffected.
11.5 Contractual partners of the Purchaser shall be bound in accordance with Clauses 11.1 to 11.4.
11.6 The purchaser may only refer to the business relationship with us in advertising with our prior written consent.
11.7 If claims are asserted against the purchaser by third parties due to direct infringement of industrial property rights, including copyrights,
on the basis of deliveries and/or services by us, we shall indemnify the purchaser in the event of culpable action with regard to the claims for damages recognized against it or determined by settlement as well as with regard to the reasonable court costs and lawyers’ fees; this, however, only under the following conditions:
- The purchaser shall inform us immediately of the claim or warning by a third party without having previously taken any steps to defend himself and/or having engaged a lawyer. This does not apply to immediate measures that have to be initiated before we can be informed.
- Only we are authorized to initiate defense measures and to entrust lawyers with the implementation of the defense measures and/or to issue statements and/or to conduct other negotiations. At our request, the Purchaser shall engage a lawyer to represent us at our expense.
- The Purchaser shall notify us of the matter without delay and on an ongoing basis and, in particular, provide us with the necessary information and documents.
12.0 Reservation of ownership
12.1 We retain title to the delivery of goods until receipt of all payments under the delivery contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the delivered goods. Such repossession by us shall not constitute a rescission of the contract unless we expressly declare this in writing (see clause 12.10).
12.2 If we have an ongoing business relationship with the customer, the reservation of title to the delivery item shall also extend to all outstanding claims to date.
12.3 The customer may resell and process the delivered goods in the ordinary course of business. However, he hereby assigns to us by way of security all claims, including ancillary rights, accruing to him from the resale against his customer or third parties up to the amount of all our outstanding claims. The customer shall remain authorized to collect the claim himself; this shall not affect our authority to collect the claim. However, we undertake not to notify our customers or third parties of the assignment as long as the customer meets his payment obligations to us and no petition for the institution of bankruptcy or composition proceedings has been filed or payments have otherwise been suspended. Upon request, the customer shall be obliged to provide us with all necessary information on the assigned claims and to hand over the relevant documents.
12.4 In the event of processing or transformation of the goods delivered by us by the customer, we shall acquire co-ownership of the new item in the ratio of the value of our goods to the value of the other processed items at the time of processing/modification. The above provisions shall apply accordingly to the new item created by processing.
12.5 The Customer shall also assign to us those claims in accordance with the above provisions which arise against a third party as a result of the combination of the goods delivered by us with a property.
12.6 If the value of all securities due to the agreed retention of title exceeds our claims by more than 20%, we shall be obliged, at our discretion, to release the securities to the amount of the exceeding value at the request of the customer.
12.7 The customer is obliged to insure the goods at his own expense against theft, breakage, fire, water and other insurable damage as long as we are the reserved owner of the goods and to provide us with proof of insurance upon request.
12.8 The customer may neither pledge the goods nor assign them as security. In the event of seizure, confiscation or other dispositions by third parties, he shall notify us thereof without delay. Should we suffer any damage (e.g. due to loss of rights) as a result of failure to notify us or late notification, the customer shall be liable to pay compensation.
12.9 In the event of any breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the goods after issuing a reminder and the customer shall be obliged to surrender the goods.
12.10 The assertion of the reservation of title as well as the seizure of the delivery item by us shall not be deemed a withdrawal from the contract.
13.0 Final clauses
13.1 The place of performance for all obligations arising from the contractual relationship shall be our registered office, unless otherwise stated in the order confirmation.
13.2 Pinneberg is agreed as the place of jurisdiction. However, we shall also be entitled to sue the customer at his general place of jurisdiction.
13.3 Our contractual relations shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
13.4 Should any provision of the contract be invalid, this shall not affect the validity of the remaining provisions, unless adherence to the contract constitutes an unreasonable hardship for one of the contracting parties, even taking into account the statutory provisions.
13.5 Declarations made by the Purchaser to us, e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction, shall only be effective if they are sent to us in writing.
13.6 If a written declaration is required in these GTC, transmission by e-mail shall also suffice.