1. APPLICATION
1.1 All deliveries by NHU EUROPE GmbH (hereinafter referred to as "Seller") shall be made in accordance with the following Terms and Conditions of Sale and Delivery, unless expressly agreed otherwise.
1.2 Any deviating or supplementary terms and conditions of the Buyer shall not apply unless the Seller has expressly agreed to their validity. This shall also apply if the Seller fulfils the contract without reservation in the knowledge of deviating terms and conditions of the Buyer.
2. CONCLUSION OF CONTRACT
2.1 The Seller's offers are non-binding. If the Buyer submits an offer by placing an order, the contract is concluded when the Seller sends the order confirmation. If the Seller expressly submits a binding offer, the contract shall be concluded by the Buyer's order in accordance therewith.
2.2 An order can only be cancelled or changed with the written consent of the Seller.
3. PRICES
3.1 The Seller's prices are subject to the applicable value added tax.
3.2 If, after conclusion of the contract, customs duties or other cost items, which were included in the Seller's prices or which constitute a surcharge for this purpose, change for reasons for which the Seller is not responsible and which become effective after submission of the order confirmation or the offer, and if this increases the total costs of fulfilment of the contract for the Seller, taking into account the development of all other cost items, the Seller shall be entitled to adjust the prices accordingly at its reasonable discretion. The Seller shall inform the Buyer of the price adjustment without delay. If the prices increase by more than 10%, the Buyer shall be entitled to rescind the contract.
4. PAYMENT
4.1 Unless otherwise agreed, the purchase price is due for payment no later than 30 days from the invoice date.
4.2 If the Buyer does not pay the purchase price on time, the Seller may demand interest on arrears at the statutory rate from the due date.
4.3 The Buyer shall only be entitled to offset counterclaims and to assert a right of retention on the basis of such claims if the counterclaims are undisputed or have been determined by a non-appealable court decision. This restriction shall not apply if the Buyer asserts claims for defects arising from the same contractual relationship as the Seller's claim.
5. RESERVATION OF TITLE
5.1 The goods shall be delivered subject to retention of title and shall remain the property of NHU EUROPE GmbH until payment has been made in full.
6. DELIVERY
6.1 Delivery shall be made on the basis of the agreed delivery clause in accordance with INCOTERMS 2020.
6.2 The delivery obligation is subject to correct and timely delivery to the Seller by its suppliers (Selbstbelieferungsvorbehalt).
6.3 Insofar as the Seller is liable due to delay, its liability for damages caused by delay (damages in addition to performance) is limited to 5% of the net purchase price of the goods delivered late, insofar as the seller and his vicarious agents are not guilty of intent or gross negligence. This does not apply to culpable injury to life, limb or health. For claims for damages in lieu of performance, the liability provision under Clause 9 shall apply.
7. DUTY TO INSPECT AND GIVE NOTICE OF DEFECTS
7.1 The Buyer is obliged to carry out the necessary inspections to determine any defects immediately upon receipt of the delivery.
7.2 The Buyer must notify the Seller immediately in writing of any recognisable defects. This also applies to complaints due to differences in quantity. Hidden defects that were not recognisable in the course of a proper inspection but only come to light later must be reported immediately after discovery. Each notification must include a specification of the defects. If the Buyer does not fulfil his obligation to give notice of defects in due form and time, the Buyer loses his right to make a claim in respect of the defects, with the exception of fraudulently concealed defects.
7.3 If the Buyer has made a complaint about a product and it turns out that the defect was not caused by the Seller, the Seller is entitled to compensation for the costs and expenses incurred as a result, unless the Buyer proves that it was not recognisable to the Buyer that there was no defect.
8. WARRANTY
8.1 In the event of a defect notified by the Buyer in good time, the Buyer shall be entitled to the statutory warranty rights subject to the following provisions.
8.2 The Seller is entitled to choose between rectification and subsequent delivery.
8.3 The quality agreement resulting from the product description is primarily decisive for the question of defectiveness. The Seller assumes no responsibility for whether the delivered goods are suitable for the purpose intended by the Buyer or whether the delivered products may legally be used for the purpose intended by the Buyer, unless the parties have agreed on a contractual intended use. Objective requirements within the meaning of Section 434 (3) of the German Civil Code (BGB) shall only be taken into account if no quality agreement can be established.
8.4 The Seller is not liable for faults or defects caused by incorrect handling, transport, storage or other neglect by others.
8.5 Liability for damages shall only exist under the statutory requirements to the extent specified in Section 9.
8.6 The warranty period is one year from delivery. Notwithstanding this, the statutory warranty period shall apply to claims for damages due to intent or gross negligence or due to culpable injury to life, limb or health. The limitation regulations according to Section 445b of the German Civil Code (BGB) remain unaffected.
9. LIABILITY
Subject to the following provisions, the Seller shall only be liable for intent and gross negligence and for the culpable breach of material contractual obligations. Material contractual obligations are those whose fulfilment is necessary to achieve the purpose of the contract and on whose compliance the Buyer regularly relies and may rely. Insofar as the Seller is liable under this provision, its liability shall be limited to the foreseeable damage typical of the contract, unless it or its vicarious agents are guilty of intent or gross negligence.
The seller's liability due to culpable injury to body, life and health as well as the liability for fraudulently concealed defects, due to quality guarantees and the mandatory liability according to the Product Liability Act as well as according to Section 24 of the German Food and Feed Code (LFGB) remain unaffected.
Unless otherwise stipulated above, the Seller's liability is excluded.
The above limitations of liability shall apply accordingly if the Buyer asserts a claim for reimbursement of futile expenses instead of a claim for damages in lieu of performance.
10. FORCE MAJEURE
10.1 Neither party shall be obliged to pay damages if and to the extent that it is prevented from fulfilling its contractual obligations due to force majeure circumstances. In this case, the affected party shall be entitled to postpone the delivery for the duration of the hindrance and a reasonable restart period.
10.2 Force majeure shall be deemed to exist if a party is prevented from fulfilling this agreement by circumstances unforeseeable at the time of conclusion of the contract and unavoidable for it, such as in particular war, civil war, riots, measures by public authorities, import or export bans, natural disasters (such as earthquakes, storm surges, extensive flooding, tidal waves, volcanic eruptions), fire, strikes or lawful lockouts or similar.
10.3 In such a case, the affected party shall inform the other party immediately after becoming aware of the occurrence of the hindrance and its expected duration.
10.4 In the event of a delay of more than three months, either party shall be entitled to rescind the contract, but the Buyer shall only be entitled to do so after giving notice. In this case, the Seller undertakes to reimburse the Buyer for any payments already made by the latter for deliveries not made.
11. THIRD PARTY CLAIMS
Should third parties assert claims against one of the parties in connection with the goods delivered by the Seller, for example in the context of product liability or due to an infringement of property rights, this party must inform the other party immediately. In all other respects, the statutory provisions shall apply unless the provisions of these Terms and Conditions of Sale provide otherwise.
12. CHOICE OF LAW, JURISDICTION AND ARBITRATION
12.1 Subject to the provision in Section 12.2 , the courts in Lüneburg shall have exclusive jurisdiction for all disputes between the parties arising from and in connection with this contract.
12.2 If the Buyer has its registered office outside the European Economic Area and Switzerland, the parties shall enter into the following agreement in deviation from section 12.1 :
All disputes arising out of or in connection with this contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one arbitrator appointed in accordance with these Rules in the case of a value in dispute of up to EUR 150,000 and otherwise by three arbitrators appointed in accordance with these Rules. The place of arbitration shall be Hamburg. The language of the arbitration proceedings shall be English.
12.3 German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
General Terms and Conditions - NHU EUROPE GmbH - Status: January 28, 2024