Terms and Conditions of Delivery and Payment
These terms and conditions of delivery and payment are considered part of any contract concluded with HOLGER CLASEN GmbH & Co. KG (hereinafter referred to as “HOLGER CLASEN”). By placing an order, the Customer (hereinafter referred to as “Buyer”) shall accept these general terms and conditions as binding. The general terms and conditions of the Buyer shall not be accepted. The Buyer shall also acknowledge HOLGER CLASEN’s Code of Conduct (Compliance Guideline) (also see www.holger-clasen.de/unternehmen/ueber-uns/compliance/).
1. Offer and conclusion of contract
No offer shall be binding. Dimension and weight specifications, images or figures and descriptions contained in offers are to be understood as approximates unless expressly stated as binding.
A contract is deemed to be concluded upon issuance of our written order confirmation or by completing the relevant delivery or service.
2. Cancelling orders
Any cancellation of an order already confirmed by HOLGER CLASEN or any return of goods without any legal right to do so shall only be permitted with our prior written consent. Furthermore, any return of goods shall only be permitted if goods are in their original packaging and in perfect condition. Before returning goods, the article number, original invoice or original delivery note, production code, and reason for the return must be indicated.
In any case, the Buyer shall bear any and all expenses incurred as a result of the return and processing of the cancellation as well as any costs that might have been incurred in case of a cancellation due to the start of production. These costs shall be calculated at 20% of the net value of the goods/order, but shall at least amount to 50.00 euros whereby the Buyer shall have the right to furnish proof of lower costs.
HOLGER CLASEN shall have the right to claim verifiably higher costs or damages, e.g. for damaged packaging or futile production costs.
Any products not belonging to our standard delivery program as well as so-called custom-made products shall, in any case, be exempted from such cancellation or return.
3. Prices and minimum invoice value
The prices stated do not include packaging, shipping, and insurance. Prices are ex storage Hamburg plus applicable VAT.
HOLGER CLASEN shall be entitled to increase the price to the price applicable at the time of delivery or service performance if the delivery or performance is to take place more than four (4) months after the contract was concluded and the prices applicable to the Buyer have changed.
HOLGER CLASEN shall have the right to charge an additional handling flat fee of 30.00 euros. This fee shall be waived if the net order value exceeds 100.00 euros.
4. Packaging, shipping, insurance
Unless otherwise agreed, shipping shall be at the expense and risk of the Buyer. Packaging, shipping, and insurance shall be charged at cost price. Unless otherwise agreed, the Incoterms ® 2010 shall apply. HOLGER CLASEN shall deliver EXW.
If free delivery has been agreed, it shall also be at the Buyer’s risk. Transport insurance shall only be taken out upon the Buyer’s request and expense. HOLGER CLASEN shall have the right to take out insurance for relevant risks at the Buyer’s expense.
If HOLGER CLASEN agrees to apply for required export permits for international business transactions, the Buyer shall bear all costs and risks.
5. Terms of payment
Unless otherwise agreed, invoices for deliveries within Germany shall be payable within 30 days net. If payment is received within 14 days of the invoice date, HOLGER CLASEN shall grant with a 2% cash discount. A cash discount shall not be permitted if previous invoices have not yet been paid. In case of open invoice items, payments received shall be used to settle the oldest outstanding debt. For invoices for services, the net amount shall be payable immediately.
Once the above-mentioned term has expired, the Buyer shall be in default. Default interest shall be payable at a rate of 9% above the base interest rate in the event of default.
If, after conclusion of the contract, it becomes apparent that the amount due to us is in jeopardy due to the Buyer’s lack of ability to perform, HOLGER CLASEN shall be entitled to declare the remaining debt due for payment and make deliveries subject to advance payment or the provision of collateral. Any other claims shall not be affected.
Any rights to set-off or retain payments shall only be permitted if claims are legally binding or uncontested. If the delivery is defective, the Buyer’s rights, especially those according to art. 8 hereof shall not be affected.
6. Delivery, delivery period
The delivery period shall commence as soon as all details of the performance have been clarified and the Buyer has fulfilled any preliminary contractual obligations. The term of delivery or performance shall start upon issuance of the order confirmation or upon receipt of the purchase price and shipping costs in case of advance payment. It shall be deemed to be adhered to if the object of delivery has been shipped within the agreed term or upon notification that the goods are ready for dispatch within the agreed term of delivery if delivery has been delayed for reasons within the Buyer’s reasonable control.
In the event that we are not able to fulfill our delivery or performance obligations due to force majeure, strike or lockout or the effects of industrial action or other events beyond the control of HOLGER CLASEN, we shall have the right to delay delivery or service performance for the duration of such disruption plus a reasonable restart period. The Buyer shall be informed immediately about the start and end of such disruption. If due to the delivery delay the performance of the contract shall become unreasonable for either HOLGER CLASEN or the Buyer, both parties shall have the right to rescind the contract. If export permits required to perform cross-border contracts are not granted or export is constrained for whatever reason, HOLGER CLASEN shall be free from its delivery obligations.
Deliveries shall be subject to us being supplied properly and in time by our suppliers.
Timely and appropriately sized partial deliveries shall be permitted and may be invoiced separately.
In the event of a delay or if delivery is impossible for reasons attributable to HOLGER CLASEN, the Buyer shall have the right to rescind the contract in accordance with legal provisions. If HOLGER CLASEN is responsible for the delay, the Buyer shall be entitled to claim compensation amounting to max. ½% of the value of the delayed delivery or service for each full week of the delay, but in any case no more than 5% in total of the value of the delayed delivery or service in case of damage. In all other cases, the provisions of art. 9 of these terms and conditions shall apply in case of late delivery and impossibility. HOLGER CLASEN reserves the right to furnish proof that the Buyer did not suffer any damage or damage that is considerably lower than the above-mentioned flat rate.
7. Special terms for repairs and other service contracts
The Buyer shall receive a quote. Any costs incurred for determining the amount of repair work required shall be borne by the Buyer even if he does not place an order.
If, during repair, it becomes clear that additional services will be required to achieve success or that the quote will be exceeded significantly, the Buyer shall be informed accordingly who may then either agree to bear the additional costs or cancel the order. If the Buyer cancels he shall have to bear any and all costs incurred until such time. We shall not be liable for damage caused by fire, water or theft resulting from a repair order.
If HOLGER CLASEN is in possession of a product in order to repair it or perform any other service, we shall have a right of lien or retention until the service to be performed or outstanding amounts due from earlier service orders have been paid.
8. Liability for defects
The Buyer shall be obliged to notify HOLGER CLASEN immediately in writing of any defect but in any event no later than within eight (8) days after receipt of the goods at their place of destination. Defects not discovered within the term stipulated shall be notified immediately after their discovery.
HOLGER CLASEN shall assume liability for material defects that already existed at the time of the passage of risk. To this end, we may, at our discretion, provide a replacement or repair the defect free of charge.
If any subsequent action finally fails or if HOLGER CLASEN lets a reasonable grace period set for any subsequent action expire without effect through our own fault or if HOLGER CLASEN refuses any subsequent action or if it is impossible or unacceptable to the Buyer, the Buyer shall have the right to rescind the contract or request a reduction. In case of only minor deviations that do not impair the function of the item, the Buyer shall only be entitled to a reduction.
HOLGER CLASEN shall not be liable for defects resulting from alterations, modifications, repair or maintenance work performed by persons not authorized by HOLGER CLASEN unless the Buyer furnishes proof that the defects concerned do not result from such work. The same shall apply to defects resulting from damage in transit, mistakes made by the Buyer or third parties during commissioning, inappropriate or careless use, non-compliance with maintenance instructions, and not making use of recommended maintenance services.
Claims arising from defects according to art. 437 German Civil Code shall lapse 12 months after delivery; claims arising from defects according to art. 634 German Civil Code shall lapse 12 months after acceptance.
Any information provided with regard to processing and application options of products, technical advice, and other data shall require our written confirmation.
Liability for damages shall be subject to art. 9 of these terms and conditions.
9. General liability
Any claims for damages in connection with and apart from our liability for defects, e.g. resulting from delay or impossibility, the violation of other contractual duties, culpa in contrahendo, unlawful action or other legal grounds, particularly for damage not caused to the object of delivery, shall be excluded. We shall only be liable in case of willful intent or gross negligence, in the event of culpable injury to life, body, and health, in case of defects which were maliciously concealed, for accepting a quality guarantee or in case of defects of the object of delivery to the extent that we are obliged to accept liability for material damage to privately used items or for personal injury according to the product liability act.
HOLGER CLASEN shall also be liable in case of a culpable breach of essential contractual duties. In such a case, however, our liability shall be limited to typical, reasonably foreseeable damage except in the event of gross negligence.
In case of cross-border contracts, HOLGER CLASEN shall have the right to set a liability limit. HOLGER CLASEN shall not be liable if German authorities do not issue export permits to Buyers having their residence or registered office outside of Germany or if exporting is constrained for other reasons.
10. Retention of title
The goods shall remain property of HOLGER CLASEN until complete payment of all outstanding debts due resulting from business transactions including subordinated debt. In case of open accounts, the reserved goods shall be deemed to be collateral for outstanding debt owed to us. If our goods are permanently incorporated into another movable object, such installation shall take place without incurring any obligations on the part of HOLGER CLASEN. If goods have been incorporated, HOLGER CLASEN shall acquire co-ownership of the new item at a ratio of the invoice value of our reserved goods to the value of the other product at the time of incorporation.
The Buyer shall only be permitted to resell or incorporate the reserved goods in compliance with the following provisions and subject to the proviso that receivables from resale shall pass to us.
The Buyer’s right to sell or incorporate reserved goods as part of his normal business activities shall end as soon as HOLGER CLASEN revokes such right if we learn of the Buyer’s deteriorating creditworthiness.
The Buyer hereby assigns to HOLGER CLASEN in advance all outstanding debt due to him now or in the future resulting from the resale or any other legal transaction with regard to the goods we delivered in the amount of the value of the reserved goods at the time of accrual. We shall accept such assignment. The value of our reserved goods shall equal the invoice amount plus a security premium of 10%, which, however, shall not be taken into account if it conflicts with third party rights. In the event that the goods are resold after having been incorporated, the outstanding amount due from the Buyer’s customer shall be assigned to HOLGER CLASEN in the amount of the invoice value of the incorporated reserved goods or in the amount of our share in the co-ownership if it is lower. This provision shall also apply to any sale after the goods have become an integral component of the other product after being incorporated.
The Buyer shall be authorized to collect the assigned payments as long as he complies with his payment obligations. Such authorization shall expire upon repeal, but in any event in case of default in payment on the Buyer’s part or if it becomes apparent after the conclusion of the contract that the outstanding debt is in jeopardy due to the Buyer’s lack of solvency.
The Buyer shall be obliged to sufficiently insure the reserved goods, in particular against fire, theft, water damage, and other typically insurable risks. In case of an insured loss, the above stated advance assignment shall also apply to claims for damages vis-à-vis the insurer.
If the value of the collateral provided should exceed any outstanding debts owed to HOLGER CLASEN by more than 10% in total, HOLGER CLASEN shall be obliged at the Buyer’s request to release, at our discretion, collateral in an appropriate amount. By paying all outstanding debts due to us resulting from business transactions, ownership of the reserved goods and the receivables assigned shall pass to the Buyer.
11. Place of jurisdiction, place of fulfillment, miscellaneous
These terms and conditions shall be governed by German law to the exclusion of international uniform law and UN purchase law. Place of fulfillment is Hamburg.
The exclusive place of jurisdiction for all disputes, including international disputes, arising directly or indirectly from the contract shall be Hamburg, if the Buyer is a merchants according to German commercial law, a business owner according to act. 14 of the German Civil Code, a legal entity under public law or a special fund under public law. In any case, HOLGER CLASEN shall also have the right to bring an action against the Buyer at his general place of jurisdiction. Statutory regulations having precedence, particularly those regarding exclusive competences, shall not be affected.
If one of the above clauses is or becomes fully or partly ineffective, this shall not affect the effectiveness of the remaining provisions of these terms and conditions and of the contract.
Last amended: August 1st, 2018