Conditions of Use - SALE
Michael Meyer GmbH, Hamburg, Germany
(Commercial Register B No. 33133 of the Hamburg Local Court, Germany)
GENERAL TERMS AND CONDITIONS
FOR THE SALE OF CONTAINER
—Version: February 2019—
The following terms and conditions apply to the sale of containers and corresponding equipment, container parts, and all other items and equipment (hereinafter referred to as "container" or "item") by Michael Meyer GmbH. The buyer accepts these General Terms and Conditions with his order, at the latest upon receiving of our first delivery. They apply for the whole period of the business relationship. We hereby object to the application of any General Tems and Conditions of the buyer. The performance of the contract shall not mean our consent to the buyers General Terms and Conditions.
1.2 Freight forwarding
If MICHAEL MEYER GMBH acts as a freight forwarder the respectively valid version of the ADSp, as well as the limitations of liability provided for there, shall apply exclusively.
2. Contract conclusion and amendment
2.1 Our offers are subject to change, unless otherwise provided for in the offer.
2.2 Orders are not binding for us, unless and inasmuch as we have issued an order confirmation.
2.3 Amendment and supplements to the contract must be made in writing. In particular, our employees and representatives are not entitled to make verbal agreements on the amendment of the contract. We are bound by such ancillary agreements, promises, or contracts, only after amending our confirmation of order correspondingly.
2.4 Specifications and information on the construction, suitability, use, processing, cleaning, and post-processing of our containers, in particular with regard to the suitability for a certain content or a certain application, are not binding and do not release buyers from making their own tests and assessments. The intended material and wall thicknesses, volumes, weights, load capacity and wear resistance limits, physical characteristics, dimensions, forms, colors, construction features, and chemical stability will be adhered to as far as is technically possible.
3.1 Our prices are the net prices. Unless otherwise stipulated in writing, our prices apply ex MICHAEL MEYER GMBH-Depot in Hamburg plus the German VAT applicable on the delivery date.
3.2 In the case of new orders (inter alia, for follow-up orders), we are not bound to previous prices.
4. Transfer of risk
4.1 Upon relinquishing the container to the freight forwarder, carrier, or another —including our own— transporter, the risk of accidental perishing or deterioration shall pass to the buyer. This also applies to free home deliveries. The container will not be insured against transport damage. If, however, at the express wish of the buyer in writing, we do conclude transport insurance, the buyer shall bear all costs thereof.
4.2 In the event that the shipping is delayed due to circumstances for which the buyer is accountable, the risk of accidental perishing or deterioration shall transfer to the purchaser upon notification that the dispatch is ready.
5. Delivery and performance, as well as scheduled delivery dates
5.1 Unless otherwise stipulated in writing, our deliveries are made ex MICHAEL MEYER GMBH-Depot in Hamburg.
5.2 Delivery dates confirmed by us are not binding, unless they are expressly designated as being binding.
5.3 Prerequisite for the adherence to delivery terms and dates is the timely fulfillment of the buyer's contractual obligations. The term of delivery begins after all of the details for the performance of the order have been clarified, receipt of all documentation required to perform the order and other information to be provided by the buyer, and receipt of any stipulated advance payment.
The term of delivery is also deemed to have been adhered to, if the containers left our depot at the stipulated time or the readiness to dispatch has been communicated to the buyer, but the containers were, at no fault of our own, unable to be dispatched on time. The same shall apply correspondingly to delivery times.
5.4 Notwithstanding Section 286 (2) of the German Civil Code (Bürgerliches Gesetzbuch - BGB), we shall only be in default upon receipt of a written reminder. In the event that we are in default with the delivery, the buyer is to grant us a reasonable grace period for the delivery, except for the statutory exceptions where the granting of a grace period is not required.
5.5 Upon expiry of the reasonable grace period under No. 5.4 above, the buyer is entitled to rescind the contract if we are liable for exceedance of agreed delivery terms. The burden of proof shall remain unaffected. The right to rescind does not apply if the container is sent or is ready for dispatch by the time the grace period lapses and this has been communicated to the buyer. The buyer is not entitled to terminate the contract, if he is liable or predominantely liable for the reasons for termination. The same applies while the buyer is in default of acceptance, unless we are liable for the delay.
5.6 In the case of force majeure and/or other unforeseeable, extraordinary circumstances, for which we are not responsible, in particular war, threat of war, riots, violent acts by third parties against persons or property, government interventions, including measures of monetary and trade policy, labor disputes in our business or in that of our suppliers or transport companies, interruptions in the intended transport routes, fire, lack of raw materials, energy shortages, and other disruptions for which we are not responsible to our operations or to those of our suppliers, the fixed delivery terms and times stipulated shall be extended by the duration of the impediment. This also applies inasmuch as the impediments to performance listed above already exist at the time the contract is concluded, but remained unknown to us due to reasons for which we are not responsible. We will notify the buyer of obstacles of the aforementioned type without delay. We are entitled to limit the deliveries and, at our equitable discretion, to distribute among all buyers the available amount of containers provided for the duration of the aforementioned impediment. We are released from our delivery obligation with respect to quantities not delivered because of the above-mentioned circumstances, inasmuch as the delivery becomes impossible or unreasonable, in particular if it becomes especially difficult or expensive. In the event that the delays in delivery due to the aforementioned circumstances last longer than four weeks, both parties are entitled to rescind the contract. The buyer may first rescind the contract, however, if we have not made a declaration within a week, upon being requested to do so by the buyer, on whether we intend on rescinding or delivering within a reasonable period of time.
5.7 We are entitled to terminate the contract if and insofar as our suppliers do not in whole or in part fulfil their obligations of their supply agreements with us for reasons outside our responsibility. Our liability is stipulated in clause 9, if any.
5.8 If the buyer has no statutory or contractual right to rescind the contract and we have still accepted in writing a return delivery of the containers, we will charge a processing fee amounting to 25% of the gross purchase price. The buyer is free to demonstrate that we have incurred no or much fewer damages.
6. Acceptance and delivery
6.1 The buyer is obligated to also accept partial deliveries of a reasonable scope.
6.2 The buyer shall also enter into default of acceptance, if delivery has merely been offered by us in writing. Section 294 of the German Civil Code is thus waived. The other statutory requirements for default of acceptance remain unaffected.
6.3 If the buyer is in default of acception in whole or in part we are entitled to terminate the contract wholly or partly after setting a period of at least two weeks and to claim for damages after expiration of that period. If we claim for damages the damage is at least 15 % of the purchase price plus VAT. Our right to proof further damages as well as the buyers right to proof lower damages shall remain unaffected.
7.1 The receivables from our invoices are immediately due for payment in full, unless otherwise stipulated.
7.2 We are, despite provisions of the buyer to the contrary, entitled to first offset the payments against the buyer's older debts. In the event that we exercise our right to divergently designate against what the payments are offset, we will inform the buyer thereof. If costs and interest have already been incurred, we are entitled to first offset the payments against the costs, then against the interest, and last against the principal debt.
7.3 The amount of default interest charged is governed by German law.
7.4 In the event that the buyer, in breach of the contract, does not fulfill the payment obligations for reasons that the buyer is responsible or if the buyer stops payments or if there is a substantial deterioration of the buyer´s assets, we are entitled to make the entire balance due.
In this case, we are also entitled to refuse deliveries based on other existing contracts, until all payments due have been made. In this case, we are also entitled to revoke payment terms that have been granted.
7.5 The buyer has rights to offsetting and retention, only if the counterclaims are established res judicata or acknowledged by us in writing.
7.6 We are not obligated to accept drafts or checks. In the event that we do agree to accept them, they will only be accepted as conditional payment subject to the possibility of discounts in exchange for reimbursement of all expenses and bank confirmation, unless the check is guaranteed immediately. We are equally not obligated to the timely submission of drafts and checks, nor to lodge protests.
8. Warranty and disclaimer of warranty for used containers
8.1 A merely negligible reduction in the value or suitability of the item does not constitute a defect. In particular, minor deviations in form and color, material and wall thickness, volumes, weights, load capacity and wear resistance, dimensions, and natural wear, are irrelevant. Deviations that are within the usual limits are also irrelevant.
8.2 Furthermore, minor and, for the buyer, reasonable technical and artistic deviations from descriptions and information in brochures, catalogs, and other written documents, as well as changes to the model, construction, and material in the course of technological progress are not deemed defects.
8.3 We are only responsible for the chemical stability and certain physical characteristics of our containers and for the immutability of the contents and their durability in our containers, if we have guaranteed such characteristics in writing and these have been stipulated in writing.
8.4 In the event that the delivery is defective and the buyer demands subsequent performance, we may —at our option— remedy the defect ourselves or deliver an item free of defects as a replacement. We are liable for the delivery of a replacement to the same extent that we are for the original item that was to be delivered. The right of the buyer after subsequent performance has failed finally to reduce the price or to rescind the contract remains unaffected. Number 9 below shall apply to claims for damages and compensation of expenses due to defects.
8.5 Obvious defects are to be made known to us in writing, i.e., via fax or email, within three days after receipt of the containers. This applies equally to obvious transport damage, even if we are not responsible for the transport. In the event that the buyer fails to notify us in a timely manner, this shall be deemed an unconditional approval of the containers.
8.6 In commercial transactions, the buyer is to make a timely examination of the containers at latest within three days after receipt and to notify us in writing and without delay of any complaints. In the event that the buyer fails to notify us, this shall be deemed an unconditional approval. The warranty for hidden defects, which are not discernible despite careful examination within the period of three days, is excluded, if the contractual partner does not contest thereto in writing without delay after their discovery.
8.7 Clause 8.6 applies accordingly if the buyer is an entrepreneur in the meaning of § 14 German Civil Code (BGB) but not a businessman in the meaning of the German Commercial Code (HGB).
8.8 Otherwise, warranty claims are excluded if, as a result of further shipment, the handling and/or processing of the containers, etc. delivered by us, we are unable to test and determine whether the item is actually defective.
8.9 Warranty claims against us may only be raised by the immediate buyer and are not assignable.
8.10 Sections 478 and 479 of the German Civil Code remain unaffected.
8.11 We are to bear the transport costs necessary for subsequent performance only inasmuch as they are incurred for subsequent performance at the stipulated place of delivery.
8.12 Notwithstanding the provisions of this number and subject to the provisions of Number 9, the warranty claims of the buyer due to visible and hidden defects in used containers are excluded.
9.1 We are liable for intentional or grossly negligent conduct by our statutory organs, legal representatives, and officers.
9.2 Any claims for damages —on whatever legal grounds— due to slightly negligent breach of nonessential contractual obligations by our statutory organs, legal representatives, and agents are excluded.
9.3 In the case of a slightly negligent breach of essential contractual obligations by our statutory organs, legal representatives, and agents, as well as of the intentional or grossly negligent breach of material contractual obligations by our simple agents, we are liable —under any legal viewpoint— only for foreseeable damages typical to the contract and not for remote consequential damages.
For each single case our liability is limited up to the triple invoice amount of the respective delivery.
9.4 The liability pursuant to the German Product Liability Act (Produkthaftungsgesetz - ProdHaftG), the liability for damages resulting from the culpable injury to life, limb, and health, as well as the provisions of Section 444 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) and the liability from other guarantees remain unaffected by the provisions above.
9.5 All further contractual and non-contractual claims of the buyer are excluded.
9.6 The buyer is liable for all damages that result from the breach of obligations to cooperate.
10. Limitation period
10.1 The claims of the buyer due to defects shall become time-barred in one year after delivery of the purchase items. Sections 478 and 479 of the German Civil Code remain unaffected by these provisions.
10.2 The buyer's claims to damages based on other legal grounds shall become time-barred in 18 months. Section 199 (1) and (3) of the German Civil Code shall apply to the beginning of the limitation period.
10.3 Inasmuch as we are liable in accordance with Number 9 above for gross culpability, for damages resulting from the culpable injury to life, limb, and health, as well as for
assumed guarantees and according to the German Product Liability Act, the statutory limitation provisions shall apply.
11. Retention of title
11.1 The containers delivered by us remain our property until payment of all our existing and future claims from the business relationship with the buyer, including any existing ancillary claims and current account balances, has been made.
11.2 The buyer is entitled to resell the containers and the items, which result from the processing thereof, in the normal course of business under retention of title. Pledging of the containers under retained title and/or the assigned claims as well as assignments thereof as security are not permitted.
The buyer already assigns to us the claims, which arise from the sale or on other legal grounds, together with all ancillary rights to the amount of our claims. The prices in our last invoices, including taxes and other levies, shall apply. In the event that the buyer records the claim from the resale into a current account relationship existing with the buyer's contractual partners, the current account claim is assigned to the amount of the gross invoice value. After balancing has occurred, it shall be replaced by the recognized balance, which is also assigned to this amount. The authorization to resell the containers under retention of title is excluded, if the buyer's customers have excluded the assignment of the claims directed against them. The buyer is to exclude offsetting and the right of retention vis-à-vis the buyer's contractual partners within the legally permissible scope.
11.3 The buyer remains authorized to collection, without prejudice to our authorization to also collect on the claims. The authorization is deemed to be revoked in the case of attachment measures taken by third parties. We are, however, obligated to not collect on the claims for as long as the buyer fulfills its payment obligations, does not default with payments, and —in particular— does not become insolvent. If this is, however, the case, the authorization of the buyer to resell the containers under retention of title and to collect the assigned claims shall end, and we may demand that the buyer provide all of the information necessary to collect on the claim, hand over all relevant documents, and inform the debtor of the assignment.
The buyer is to immediately forward to us amounts received, inasmuch as our claims are due, and otherwise to keep these amounts separately for us.
11.4 The handling and processing of the containers is carried out for us as manufacturer within the meaning of Section 950 of the German Civil Code. If the containers are processed, combined, or inseparably mixed together with other items that are not our property, we shall acquire sole or joint ownership of the new item in proportion to the value of the containers in relation to the other processed items at the time of processing. In the event that the combination or mixing occurs in such a way that the buyer's item is viewed as the main item, the parties already agree that the buyer shall transfer to us the sole or joint ownership in proportion to the aforementioned ratio correspondingly. The buyer shall keep the solely or jointly owned property for us. The same shall otherwise apply to the new item created by the combination or mixing as does for the containers under retention of title. On condition of full payment in accordance with Number 11.1, the new container and/or our co-ownership share is transferred to the buyer.
11.5 The buyer is obligated to keep the containers for us attentively, carefully, and free of charge. The buyer is to insure the containers against the usual risks and herewith assigned to us claims for compensation against insurers and other liable parties to the amount of the invoice. We accept the assignment.
11.6 In the case of attachments or other interventions by third parties, the buyer is obligated to notify us without delay and, in the meanwhile, to take all precautionary measures that may not be delayed. The costs we incur by exercising our property rights and our rights to the receivables are to be reimbursed to us by the buyer.
11.7 In the event that the buyer acts in a way contrary to the contract, in particular in the case of payment default, the buyer is obligated to return the containers to us at our request. The acceptance of the returned containers does not constitute a rescission of the contract if not explicitly stated by us in writing. We are entitled to liquidate the containers after we have accepted their return. The proceeds from the liquidation are to be credited against the buyer's liabilities less reasonable liquidation costs.
11.8 At the request of the buyer, we are obligated to release our collateral or claims assigned as security, inasmuch as the realizable value of the collateral exceeds the claims to be secured by more than 20%. The selection of the collateral to be released is at our discretion.
12. Final provisions
12.1 If the buyer is a businessman in the meaning of the German Commercial Code or a public corporation the place of jurisdiction is Hamburg, Germany (Landgericht Hamburg). This shall apply exclusively to actions raised against MICHAEL MEYER GMBH Container-, Speditions- und Transportgesellschaft mbH. We are, however, entitled to file actions against the buyer with the court where the buyer is domiciled.
12.2 German material law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12.3 The place of performance for all obligations arising under the purchase agreement is the stipulated place of delivery. In the event that a place of delivery has not been stipulated, the place of performance for all obligations arising under the purchase agreement is Hamburg, Germany.