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. Quote and conclusion of contract
No quote shall be binding. Dimension and weight specifications, images or figures and descriptions contained in quotes 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. Such return of goods shall only be permitted if goods are in their original packaging and in mint 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 due to the start of production in case of a cancellation. 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 (EXW Intoterms 2020) 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 HOLGER CLASEN’s relevant list prices 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 ® 2020 shall apply. HOLGER CLASEN shall deliver EXW ex storage Hamburg (Alsterdorfer Strasse 234, 22297 Hamburg, Germany).
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 by HOLGER CLASEN within 14 days of the invoice date, HOLGER CLASEN shall grant a 2% cash discount. A cash discount shall not be permitted, however, 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.
HOLGER CLASEN shall deliver all orders or service orders of Buyers having their residence or registered office outside of Germany only after receipt of payment of the (purchase) price plus shipping costs (advance payment proviso). HOLGER CLASEN shall inform the Buyer of the advance payment proviso when giving a quote.
Once the above-mentioned payment term has expired, the Buyer shall be in default. Default interest shall be payable at a rate of 9 percentage points above the base interest rate in the event of default.
If, after conclusion of the contract, it becomes apparent that the amount due 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 pursuant to Sec. 321 of the German Civil Code. Any other claims shall not be affected.
The Buyer shall only be entitled to any rights to set-off or retain payments if and to the extent that his counterclaims are either reciprocal (Sec. 320 of the German Civil Code) to the claims asserted by HOLGER CLASEN or have been legally established, are undisputed or have been acknowledged by HOLGER CLASEN. In addition, the Buyer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
If it becomes necessary to cancel and reissue an invoice for reasons for which the Buyer is responsible, HOLGER CLASEN may charge an additional fee in the amount of 25.00 euros per invoice for the additional expense incurred.
6. Delivery, delivery period, force majeure, non-delivery by suppliers
The agreed 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, in the case of advance payment, upon receipt of the purchase price and shipping costs. It shall be deemed to be adhered to if the Buyer has been notified that the delivery item is ready for collection before the delivery and performance period expires.
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, HOLGER CLASEN 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.
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. HOLGER CLASEN 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, HOLGER CLASEN shall have a right of lien or retention until payment has been received for the service to be performed or outstanding amounts due from earlier service orders have been paid.
8. Liability for defects
The Buyer shall inspect the goods immediately upon receipt and notify HOLGER CLASEN in writing of any defects discovered during this process or later immediately upon their discovery. If the Buyer is a merchant, a breach of this obligation shall be considered an acceptance of the defect pursuant to Sec. 377 of the German Commercial Code.
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.
Under applicable statutory provisions, 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 Sec. 437 of the German Civil Code shall lapse 12 months after delivery; claims arising from defects according to Sec. 634 of the German Civil Code shall lapse 12 months after acceptance (warranty period). Notwithstanding the preceding, a 24-month warranty period shall apply to tools, which shall commence at the dates stated. Claims for damages resulting from defects shall not be affected by sentence 1 of this paragraph. The statutory warranty period of 24 months shall also apply to such claims, including claims for damages arising from the fact that HOLGER CLASEN is responsible for the delayed repair of a defect requested by the Buyer.
Any information provided with regard to processing and application options of products, technical advice, and other data shall require our written confirmation.
9. General liability
Any claims for damages brought against HOLGER CLASEN and its legal representatives and agents are excluded, unless in cases of intent or gross negligence or the breach of an essential contractual obligation. In this sense, an essential contractual obligation shall mean any obligation the fulfillment of which shall be essential for the proper execution of the contract and on the fulfillment of which the Buyer may customarily rely. Liability shall, however, be limited to compensation for any foreseeable damage in line with the contract in case of minor or gross negligence.
The above limitations and exclusions of liability shall not apply to liability under product liability law or to cases of injury to life, limb or health. Any claims for compensation of expenses brought by the Buyer pursuant to Sec. 284 of the German Civil Code shall be excluded to the extent that any claim for damages instead of performance shall be excluded pursuant to the above provisions. The statutory burden of proof shall not be changed by the provisions of this contractual clause.
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 the purchase price. If reserved 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 the reserved goods to the value of the other product at the time of incorporation, at maximum in the amount of the invoice value.
The Buyer hereby assigns to HOLGER CLASEN in advance any and 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 HOLGER CLASEN delivered in the amount of the value of the reserved goods at the time of accrual. Such assignment shall be accepted. The value of the reserved goods shall equal the invoice amount. 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.
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.
By paying all outstanding purchase price, 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, especially 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 merchant according to the provisions of the German Commercial Code, a business owner according to Sec. 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: May 1, 2021