GENERAL TERMS AND CONDITIONS FOR TRADING IN CONTAINERS (PURCHASING)
Michael Meyer GmbH, Hamburg
(company register B no. 33133 at the Hamburg district court)
GENERAL TERMS AND CONDITIONS
FOR TRADING IN CONTAINERS (PURCHASING)
- as at: February 2019 -
1.1 All future purchases made by Michael Meyer GmbH of containers and related equipment, parts of containers and all other articles and devices (hereinafter referred to as “containers” or “items”) are exclusively subject to the following purchasing conditions. They are to be acknowledged and accepted by the seller on confirmation of the order, but no later than by execution of the first delivery, and are valid and binding for the entire duration of the business relationship.
1.2 Differing/alternative conditions of the seller are hereby explicitly rejected; this remains the case even if the contract is carried out.
2. Contract conclusion
2.1 All our offers are non-binding, unless otherwise specified in the offer.
2.2 All changes and additions to the contract must be in writing. In particular, our employees and representatives are not authorised to make verbal agreements modifying the contract. Any supplementary agreements, undertakings and other agreements are only valid once confirmed in writing.
3. Prices, payment
3.1 The prices listed on quotations and orders are fixed prices, which may not be changed under any circumstances. Any variations to this principle are only valid with our express written consent.
3.2 Invoices are to be issued no earlier than the day of delivery/performance at the address we have specified. Any invoices sent or issued prior to this are deemed to be issued on the delivery/performance date. Other than where specifically agreed otherwise in writing, payment is to be made in full and without deductions within 30 days of the invoice date defined above.
3.3 If payments or agreed part-payments are not made by the relevant deadline, the seller must inform us in writing, with an appropriate notice period, without any penalties (e.g. the full amount becoming payable due to non-payment of an agreed part-payment, or the seller being entitled to cancel the contract due to non-payment). Reminder fees or administrative fees may not be charged.
3.4 Claims against us may not be ceded to third parties, without our express written consent. Despite a cession of claims, we may choose whether to make payment to the seller or to the third party. Any balance confirmations issued by us are for information purposes only, without any legal consequences, in particular without serving as an acknowledgement of debt.
3.5 We are always entitled – even if we have agreed to a cession of claims – to offset counter-claims from the entire business relationship against the claims of the seller, e.g. to offset our claims for non-performance or inadequate performance of contractual obligations against the seller's claims.
4. Passing of risk
Where not agreed otherwise in writing, delivery is at the risk and cost of the seller, who is obliged to ensure adequate insurance cover.
5. Delivery and performance as well as delivery dates
5.1 Delivery deadlines and delivery timetables must be adhered to exactly. Without our express consent, the seller is not entitled to make partial deliveries or up-front deliveries.
5.2 The acceptance of a late delivery does not constitute a waiver by us of any rights or claims arising from the late delivery.
5.3 In the event of a delay in delivery, we are entitled to either demand performance or cancel the contract, with an appropriate notice period and deadline for subsequent performance/cancellation which is based on our business requirements. We are also entitled to cancellation of parts of the contract (e.g. framework agreements regarding individual partial deliveries) at our sole discretion. In such cases, the seller is obliged to compensate us for any resulting direct or indirect losses or damages, in particular the cost of any covering transactions (in addition to payment of contract penalties due). We are entitled to cancel the contract due to late delivery, even if there are legitimate reasons for the delay.
5.4 If insolvency proceedings are initiated against the seller, or such proceedings are declined due to a lack of realisable assets, we are entitled to cancel part or all of any contracts that have not been fully completed, by providing appropriate notice to the seller (maximum 30 days).
6.1 In the absence of any other specific agreements, or a lengthier statutory limitation period, the guarantee period for the containers supplied shall be 24 months from date of delivery. Any longer statutory limitation periods remain unaffected. The seller is also fully liable for any indirect damages resulting from inadequate performance.
6.2 We will inspect the goods on receipt, and report any defects in writing immediately, but no later than 14 days after receipt. The condition therefore is that the goods are delivered on time. If goods are delivered late, the inspection will take place within an appropriate time period, bearing in mind our operating requirements. The seller agrees that inspections only consist of spot checks/random examinations. Irrespective of this, we retain the right to claim for defects that were not detected by spot checks at a later date, provided that this takes place within an appropriate period after discovery of the defect. In the event of any defects, we are entitled to make use of all legal remedies at our disposal. Under no circumstances must we tolerate more than one attempt at remedying defects. If a defect is found, all costs for inspections to determine the defect are to be paid by the seller, or refunded to the buyer by the seller.
7. Manufacturer's liability
Insofar as we are subject to manufacturer's liability due to a defect in the containers delivered by the seller, the seller must indemnify us from the resulting manufacturer's liability.
8. Final provisions
8.1 Insofar as the seller is a merchant, legal entity under public law or special fund under public law, Hamburg is the place of jurisdiction (Hamburg Regional Court). This is the only valid jurisdiction for lawsuits against MICHAEL MEYER GMBH Container-, Speditions- und Transportgesellschaft mbH. However, we reserve the right to also sue the seller in the jurisdiction where their business is registered.
8.2 The parties agree to the applicability of German substantive law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded.
8.3 The place of performance for all obligations arising from the contract is the agreed place of delivery. If no place of delivery is agreed, the place of performance for all obligations arising from the contract is Hamburg.