Home & Marine

Bremen Germany
Tel: +49 (0)421 661546
Fax: +49 (0)421 6530543

Hamburg Germany
Tel: +49 (0)40 360239170
Fax: +49 (0)40 360239180

info@home-marine.com

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General Terms and Conditions

General Terms and Conditions of H&M Electronic Systems GmbH with its registered office in Bremen.

Status January 2007

1. General

1.1 Our deliveries, services and offers shall exclusively be carried out on the basis of these terms and conditions. Any contradictory conditions or conditions of the buyer which deviate from our conditions are not recognised unless we have expressively approved their validity in written form. Our terms and conditions also apply when we make deliveries or provide services to buyers without restrictions even if we are aware of any contradictory or deviating terms and conditions of the buyer.

Our terms and conditions also apply to all future business relationships in the respectively valid version.

1.2 The buyer may not assign claims against us.

1.3 Agreements, applications assumed by the contract, assumption of procurement risks, guarantees, or other warranties prior or during the conclusion of the contract are only binding if they have been made in writing.

1.4 This contract is subject to German law. The proceedings with be conducted in the German language.

1.5 The place of execution for the obligations of the buyer as well as for our obligations is Bremen.

1.6 For all present and future claims from the business relationship including claims resulting from exchange or cheque receivables the exclusive place of jurisdiction is Bremen, if the buyer is a chartered merchant, a legal entity under civil law or a special asset as defined in civil law. This place of jurisdiction shall also apply if the buyer does not have a general court of jurisdiction within the country, transfers his residence or usual place of residence from the country or his usual place of residence is not known at the time of the commencement of a suit.

1.7 Should a condition of these general terms of conditions be or become invalid, this shall not affect the validity of the remaining conditions. The invalid conditions shall be replaced by a condition which is valid and which comes as near as possible to the content and purpose of the ineffective conditions.

2. Offer, scope of delivery and/or service, delivery times, passing of risks and returns

2.1 Our written confirmation of order is deemed as authorative for the scope of delivery or service in the event of an offer on our part, insofar as they are accepted and no confirmation of order is in place.

2.2 Documents such as cost estimates, technical drawings, diagrams, measurements, weights and other service data shall only be deemed binding if this is expressly agreed upon. We reserve the right of ownership and copyright to cost estimates, technical drawings, plans and other documents (including tenders). The stated documents may only be made available to third parties following our prior, written approval. If the contract is not awarded to us, such documents are to be returned on request without delay.

 

2.3 We reserve the right to implement production changes or deviations as a result of technical procedures which apply to measurements, weights, colours and samples etc. as long as these are reasonable to the buyer, i.e. in particular if these amount to alterations and/or deviations which maintain or improve the value of the goods. This applies accordingly to subsequent deliveries.

2.4 Partial deliveries, to a reasonable extent, are permitted and may be charged separately, so long as the interest of the buyer can be guaranteed. In the event of bulk conclusions and orders deviations up to 10% in whichever direction are permissible.

2.5 The delivery deadline shall commence with the dispatching of the confirmation of order, in the event of an order on our part it is the time of acceptation of the same, however it shall not commence before clarification in full of all details pertaining to the execution. Observing the delivery deadline shall be conditional on the fact that the contractual obligations are met on part of the buyer. The deadline shall also be deemed met if the subject matter of delivery is dispatched or if notification of the readiness for delivery is provided at the latest on the 15th calendar day following the delivery date.

2.6 The delivery deadline shall be extended acceptably in the case of measures within the framework of industrial disputes and also in the case of the occurrence of unforeseen obstacles which extend beyond our will (for example shortages of material, energy, manpower, transport capacity, production disruptions, disruption of traffic and decrees etc.) insofar as such obstacles are proven to have a considerable influence upon the production or the delivery or the subject matter of delivery. This also applies if the circumstances affect subcontractors or suppliers. We shall neither be responsible for the aforementioned circumstances if they occur during an already existing delay insofar as the delay was not brought about as a result of intent or gross negligence. In important cases we shall inform the buyer as soon as possible of the end and start of such obstacles.

2.7 In the case of a default in delivery the buyer may withdraw from the contract following the fruitless expiry of a reasonable extension of time that has been determined by him in writing, provided that the fixing of a time is not dispensable, insofar as notification had not been provided by that time that the goods were ready for dispatch. The same applies in the case of a partial default or in the case of partial impossibility of performance. The consequences of the default in delivery or the impossibility shall be determined in accordance with Section 6.

2.8 If the goods or the subject matter of performance are not collected by the buyer on the agreed date, if the shipment is postponed at the buyer's request or if the buyer does not collect the goods or the subject matter of performance following notification that it is ready for dispatch, including a reminder, the buyer shall be required to pay the costs that arise from the storage and financing, starting with the expiry of the agreed date, notification of the readiness for dispatch or the receipt of the reminder, at least, however, 0.5% of the respective invoice amount for each started month of the delayed acceptance, at the most, however, totalling 5%, insofar as the buyer does not furnish proof of lower costs. Following the fixing of a reasonable extension of time which expires in vain we shall be entitled to otherwise dispose of the subject matter of delivery and to supply the buyer with a different subject matter of delivery subject to an appropriately extended deadline. The aforementioned conditions shall apply accordingly in the case of additional or subsequent orders which result in a default in delivery of the subject matter of delivery.

2.9 The risks shall pass to the buyer upon the hand-over of the subject matter of delivery to the buyer – also in the case of own vehicles.

2.10 Delivered items are to be accepted by the buyer even if they contain minor faults and irrespective of his rights stated in Section 5.

2.11 The buyer is under obligation at our request to declare within a reasonable period of time whether he will withdraw from the contract as a result of the default in delivery, or whether he insists that the delivery be carried out.

2.12 Returns as a result of possible delayed deliveries, complaints or returns due to other reasons may only be taken back following prior consultation with us. We shall not accept returns that have not been authorised.

2.13 If the shipping is delayed as a result of circumstances which the buyer has to represent, the risk shall pass to the buyer as from the day on which the goods are ready for dispatch. However, we are under obligation at the buyer's request and on his account to secure the insurance policies demanded by the buyer.

3. Prices and terms and conditions of payment

3.1 In the absence of a separate agreement, the prices are deemed valid ex plant/warehouse and are deemed to exclude loading and packaging. The respective statutory sales tax shall be added to the prices.

3.2 If a decisive factor for pricing such as wages and / or energy costs and / or costs for primary materials and / or consumables and supplies increase in the period between the conclusions of the contract and the delivery date, we are entitled to adapt the prices to the amount which increased as a result of the procurement or manufacturing costs. In the event that the price increase exceeds 10% of the agreed prices, the buyer is thus entitled to a right of withdrawal.

3.3 Reductions and trade discounts or other deductions that may be agreed upon shall only be deemed valid in the event that all contracts between the buyer and us that are pending upon the conclusion of contract, or are in part not honoured, are performed in an orderly manner.

3.4 Cheques or bills of exchange shall only be accepted in the case of an agreement and at all times on account of payment. Expenses shall at all times be borne by the buyer and fall due for payment immediately.

3.5 Our representatives and other employees are not entitled to accept payments or are authorised regarding other provisions without a written collection authorisation.

3.6 The retention of payments or the setting off of counter-claims of the buyer is not permitted unless the counter-claims are undisputed or have become established by force of law.

3.7 The agreed price must be paid upon receipt of the invoice subject to legitimate and recognised warranty claims. In the case of legitimate and recognised warranty claims the buyer shall be entitled to withhold payments up to an amount which is deemed appropriate in relation to the material defects occurred. Should the buyer make an unsubstantiated warranty claim, we reserve the right to charge the buyer for any costs thereby incurred.

3.8 In the case of default we shall be entitled to charge statutory interest rates. We reserve the right to lodge a claim for additional damage in the case of default. In the case of default all additional claims for payment resulting from other deliveries or services as regards dealings with the buyer shall immediately fall due for payment irrespective of possible agreements regarding due dates or deferment of payment.

4. Reservation of title

4.1 We reserve the right to the ownership of the subject matter of delivery (reserved goods) up to payment in full. Furthermore, we reserve the right to ownership of the delivered goods until all claims for payment lodged against the buyer have been honoured to which we are entitled, or shall be entitled in the future, on the basis of any legal grounds and which arise from the business association, including possible refinancing and returned bills. The reservation of title is not affected by the discontinuation of individual claims for payment in a current invoice or the casting of accounts and recognition of same.

4.2 The treatment or processing of the reserved goods shall be carried out on our behalf in the capacity of manufacturer within the meaning of § 950 of BGB [German civil code] without placing us under obligation. The treated or processed goods are deemed reserved goods within the meaning of Section 4.1. In the case of processing, blending and mixing the reserved goods with other goods that are not our property by the buyer, we shall be entitled to co-ownership of the new material in the proportion of the invoice amount of the reserved goods to those of the otherwise used goods. If our ownership expires as a result of blending or mixing, the buyer shall with immediate effect assign to us the industrial proprietary rights to which he is entitled regarding the new stock and the material that corresponds with the invoice amount of the reserved goods, and he shall store the same gratuitously for us. Our co-ownership rights apply to the reserved goods within the meaning of Section 4.1.

4.3 The buyer may only sell the reserved goods during the ordinary course of business at home subject to conditions in line with customary practice in this line of business, and as long as he has not defaulted, provided that the claims for payment resulting from the resale pass to us pursuant to Sections 4.4 to 4.6. He shall not be entitled to other provisions with regards to the reserved goods.

4.4 Claims for payment from the resale of the reserved goods are assigned to us with immediate effect. They serve the purpose of securing our claims for payment to the same extent as the reserved goods pursuant to Section 4.1. If the reserved goods are sold by the buyer together with other goods that have not been sold by us, the claim for payment resulting from the resale shall be assigned in the proportion of the invoice amount of reserved goods to those of the otherwise used goods. In the case of the sale of the goods, of which we are co-owners in accordance with Section 4.2, an appropriate part shall be assigned to us in accordance with our co-ownership share. If the reserved goods are used by the buyer to perform a service contract, the demand for payment from the service contract shall be assigned to us at the same amount in advance. We hereby accept the aforementioned assignments.

4.5 The buyer is entitled to collect demands for payment resulting from the resale. This authority to collect shall expire in the event that it is revoked by us. We shall only make use of our powers of revocation if we become aware of circumstances which result in a considerable deterioration in the buyer's financial situation that jeopardises our claim for payment, in particular in the case of default in payment, the non-payment of a bill of exchange of cheque or an application filed for the institution of insolvency proceedings. At our request the buyer shall be under obligation to inform his customers immediately of the assignment to us, and to provide us with the documents required for collection.

4.6 If the contractual provisions of the third-party debtor with the buyer contain an effective restriction of the assignment authority, or the third party makes the assignment conditional on his approval, we are to be informed of this in writing without delay. In such a case we are hereby irrevocably authorised to collect the demand for payment to which we are entitled in the name and on the account of the buyer. At the same time the buyer hereby issues the third-party debtor with an irrevocable transfer order in our favour. The buyer is to inform us without delay of any seizure or other detrimental effects by third parties. The buyer shall carry all costs that are necessary to reverse the seizure or return transport of the reserved goods insofar as these are not replaced by third parties.

4.7 If the realisable value of the securities in place on our behalf exceeds all our demands for payment by more than 20–%, we shall be under obligation at the buyer's request, or that of a damaged third party as a result of our over-securing, insofar to release securities at our discretion.

4.8 In the event that the buyer breaches obligations, in particular in the case of default in payment, we shall be entitled to withdraw and take-back following the fruitless expiry of a reasonable extension of time that has been set for the buyer to perform – irrespective of further claims for damages. This shall not affect the statutory provisions pertaining to the dispensable nature of fixing a time limit. The buyer shall be under obligation to surrender and assign claims for restitution. We shall be entitled to gain access to the buyer's business unit for the purpose of taking back the reserved goods. The same applies if other circumstances occur which point to a considerable deterioration in the buyer's financial situation and jeopardise our claim for payment.

5. Material defect and defects of title

5.1 Documents or information on the subject matter of delivery or performance for the purpose of use (e.g. technical drawings, diagrams, measurements, weights,  values in use and other performance figures) irrespective of whether or not these have been expressly agreed upon in writing, shall merely constitute descriptions or identifications and no guarantees, warranted characteristics, use that is conditional on the contract and the like, and are to be considered as approximate. We reserve the right to make deviations that are customary in this line of business insofar as this is reasonable to the buyer, i.e. in particular if this maintains or improves the value of the goods. Our drivers or outside drivers are not authorised to accept notification of defects.

In any case notification of defects is excluded following treating or processing insofar as the defect was capable of being detected during the inspection while the goods are in the process of being delivered.

5.2 § 377 HGB [German Commercial Code] applies to merchants. The buyer must in particular, inspect the goods thoroughly immediately after receipt, insofar as it is in the condition of the delivery or when picking up the goods and to inform the seller of all material defects immediately in written form. Excess or short weights / deliveries within the limits which are customary shall not constitute an entitlement to lodge complaints and reduce prices.

5.3 Rights regarding material defects shall be subject to the statute of limitations of 12 months, insofar as the matter in question amounts to newly created materials or services. This does not apply, insofar as the law according to § 438 Paragraph 1 no. 2 (Construction and Items for Construction), § 479 Paragraph 1 (Right of recourse) and § 634 a Paragraph 1 no. 2 (Defects in Construction) of the BGB (German Civil Code) stipulates longer time limits. In the case of the delivery of used goods any kind of rights for material defects are excluded - subject to statutory provisions and other agreements. The reduced statute of limitations and the exclusion of liability shall not apply in cases of intent or gross negligent danger to life and limb, in the case of a breach of an obligation that is caused as a result of intent or gross negligence, in the case of the fraudulent concealment of a defect. The legal regulations concerning the start, course, stoppage and restart of periods of limitation remain unaffected.

 

5.4 In the case of material defects we are initially to be granted the opportunity to subsequently perform within a reasonable period of time at our discretion either by way of remedying the defect or by delivering a defect-free item. In the latter case the buyer shall be under obligation to return the faulty item at our request in accordance with the statutory provisions. If we ultimately and seriously refuse to make the subsequent delivery, if we can refuse the subsequent delivery in accordance with § 439, Section 3 of BGB. If the subsequent delivery does not materialise, the subsequent delivery is unacceptable to the buyer or there is a case of § 323 Paragraph 2 of BGB, the buyer can withdraw from the contract or reduce the counter performance—irrespective of possible claims for damages in accordance with Section 6.

5.5 Warranty claims shall not apply in the case of merely insignificant deviations from the agreed characteristics, in the case of merely an insignificant detrimental effect on the practicability, in the case of natural wear and tear or damage which occurs following the passing of risk as a result of faulty or slipshod treatment or storage, excessive use, unsuitable building land or such warranty claims that arise as a result of particular external influences which are not presumed in accordance with the contract, and also in the case of non-reproducable software errors. If improper alterations or maintenance work is carried out by the buyer or a third party, no warranty claims shall apply to these and to the consequences of such action.

5.6 The right of recourse on the part of the buyer against us pursuant to § 478 of BGB (recourse on the part of the contractor) shall only apply insofar as the buyer has not entered into any agreements with his customer that extend beyond the statutory warranty claims. The scope of the buyer’s right of recourse against us in accordance with § 478 Paragraph 1 applies to section 5.7 below.

5.7 Claims on part of the buyer for the costs incurred for the purpose of the subsequent performance, in particular transport, travel, work and material costs are excluded, insofar as the expenses increase because the subject matter of the delivery was subsequently brought to another location than the intended branch of the buyer, unless the shipment corresponds to the use as was intended.

5.8 In other respects Section 6 applies to claims for damages. Further-reaching claims or claims lodged against us or our vicarious agents by the buyer other than those provided for in this Section as a result of a material defect are excluded.

5.9 Complaints regarding partial deliveries shall not constitute an entitlement to refuse outstanding deliveries unless the buyer is not interested in the latter as a result of faults concerning the partial deliveries.

5.10 We shall not accept any liability for warranty claims in that the subject matter of delivery complies with regulations outside the territory of the Federal Republic of Germany which extend beyond the German regulations.

5.11 The provisions in Sections 5.1 to 5.10 shall apply accordingly in the event that defects in title are given.

6. Claims on part of the buyer in the case of default in delivery, impossibility and other breaches of obligation as well as limitations of liability

6.1 Any claim for damages lodged by the buyer as a result of a default in delivery, impossibility of delivery or due to other legal reasons, in particular as a result of a breach of obligations from the contractual relationship and from unlawful acts are excluded insofar as anything to the contrary does not arise from the Sections 6.2 to 6.7. This applies not only to claims for damages but also to compensation for expenses on the part of the buyer.

6.2 The foregoing exemption from liability does not apply

a) in cases of intent or gross negligence,

b) to cases of a danger to life and limb which are based on a negligent breach of an obligation by us or a wilful or negligent breach of an obligation by one of our legal representatives or one of our vicarious agents,

c) in accordance with German Product Liability Law,

d) in accordance with other mandatory legal provisions or

e) as a result of a violation of key contractual obligations which is our responsibility. However, a claim for damages regarding a violation of key contractual obligations is restricted to cases of direct damage that are customary in such contracts and foreseeable insofar as intent or gross negligence is not given, or liability is given as a result of negligent or wilful danger to life and limb. The aforementioned regulations do not constitute an alteration to the statutory burden of proof to the detriment of the buyer. Liability in cases of damage that are customary in such contracts and which are foreseeable is, subject to the permissibility of a limitation of liability, restricted to the three-fold net price of the individual subject matter of contract in which case the delivery or non-delivery of such a subject matter of contract results in claims on the part of the buyer.

6.3 Insofar as the buyer is entitled to claims for damages or compensation of expenses as a result of defects in accordance with the aforementioned Sections 6.1 and 6.2, these shall fall under the statutes of limitation upon expiry of the periods of limitation that apply to claims regarding material defects in accordance with the aforementioned Section 5.3. The statutory limitations provisions are deemed applicable in the case of claims for damages in accordance with the German Product Liability Act.

6.4 The aforementioned liability exemptions or limitations shall not apply insofar as a more stringent liability is provided for in the contract or same can be derived from the other content of the contractual obligation, in particular as regards furnishing a guarantee or assuming a procurement  risk.

6.5 The buyer may not demand claims for damages instead of the performance if the breach of an obligation on our part is insignificant.

6.6 Irrespective of the aforementioned restrictions, this shall not affect an existing legal right of the buyer that may apply to withdraw from the contract. In the case of breaches of violations which do not consist of a defect in the goods it shall, however, be necessary that we hold responsibility for such a breach of an obligation.