General terms and conditions
General terms and conditions of TITAN HAMBURG GMBH
for agreements with entrepreneurs
1.1. All deliveries by TITAN HAMBURG GMBH, Merkurring 70-72, 22143 Hamburg, (hereinafter referred to as the "Seller") for sales to entrepreneurs (hereinafter referred to as the "Customers") are subject to the following Terms and Conditions. 1.2. An Entrepreneur as defined in s. 14 of the German Civil Code (BGB) is a natural or legal person or a partnership having legal capacity, who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
1.3. Any Customer terms and conditions deviating from the above do not apply unless the Seller has agreed to them in writing.
1.4. Individual agreements take precedence over these Terms and Conditions.
2. Conclusion of contract and minimum order quantities
The Seller’s offers are without obligation. The Customer’s order is legally an offer, the acceptance (= conclusion of contract) is made by the Seller by setting aside the ordered goods and handing them over to the freight forwarder.
3. Forwarding charges and transport risk
3.1. The goods are principally delivered ex works.
3.2. In derogation of item 3.1, delivery within Germany is free domicile for order quantities of € 500 net or more.
3.3. The Customer bears the risk of loading and transport. Any transport insurance is not effected, unless it has expressly been agreed upon at the Customer's request and expense.
4. Self-delivery reservation and partial delivery
4.1. The Seller's delivery obligation is subject to punctual self-delivery. Should delivery difficulties arise that are not the fault of the Seller, although a covering transaction has been entered into, the Seller reserves the right to withdrawal. The Customer will be informed immediately of that and the Seller may suggest the delivery of a comparable product, as appropriate. If no comparable product is available or if the Customer does not want the delivery of a comparable product, the services provided up to this point are to be reimbursed immediately.
4.2. The Seller has the right to make partial deliveries, as far as at least twenty (20%) per cent of the respective total order quantity are delivered.
5. Default of acceptance
If the Customer fails to accept the goods at the agreed time or if an acceptance at the agreed time is not possible through the Customer’s fault, the Customer will be in default of acceptance. He shall bear the additional expenses that so arise. The Seller reserves the right to set an extension for acceptance of ten (10) working days. If the second acceptance also fails, the Seller is entitled to withdrawal. In such a case, the Seller reserves the right to assert lump sum damages to the amount of 15% of the net purchase amount; the right to assert any further damage remains reserved. The Customer is permitted to prove that no damage or only slight damage occurred.
6. Price, default and prohibition of set-off
6.1. The prices given in the sales documents are net prices and are applicable plus the legal value-added tax and the incurred packing and shipping costs.
6.2. The Seller's general price list applies in its current version.
6.3. Packing and shipping costs are considered as agreed according to the current price list. Item 3.2 of these Terms and Conditions remains unaffected by this.
6.4. The deduction of a cash discount is admissible only if it has been agreed in writing.
6.5. In the event of delayed payment, interest of 9% per cent above the current basic interest rate accrues.
6.6. The Customer has the right to a set-off with an own claim only if the Customer’s claim has either been established as legally enforceable or if it is uncontested.
6.7. The Customer may exercise a right of withdrawal only if it is based on the same contractual relationship.
The warranty term is one year starting from the date of delivery of the object. The rights of the entrepreneur following from the sections 478, 479 of the German Civil Code shall not be affected by this. The reduction of the warranty term to one year does not apply, if the compensation obligation is based on bodily harm or damage to health resulting from a defect for which the Seller is responsible or on gross default of the Seller or his agents. Regardless of the above, the Seller is liable under the German Product Liability Act (ProdHaftG).
8. Notification of defect(s)
If the Customer is a merchant as defined in the German Commercial Code (HGB), he shall inspect the goods upon delivery or handing over and, if a defect is found, shall notify the Seller immediately, but no later than one week after receipt of the goods. If the Customer fails to submit such notification, the goods will be considered as approved, unless the defect is one that could not be detected on inspection. If such a defect is detected later, the notification must be made immediately after its detection; otherwise, the goods will be considered as approved even in view of this defect. The above does not apply if the Seller has maliciously concealed the defect and/or provided a corresponding warranty. If the Seller enters into a discussion about a complaint, that does not in any way constitute a waiver of the objection of a delayed, insufficient or unfounded notification of defect(s). If the Customer demands supplementary performance, the Seller may either remedy the defect or deliver or manufacture a non-faulty contractual object.
9. Retention of title
9.1. The goods remain the property of the Seller until complete payment is made for all receivables arisen from the business relationship.
9.2. The Customer is obliged to treat the purchased object with due care prior to the transfer of title to him. The Customer shall provide information immediately in writing if the delivered object is seized or subject to other encroachments by third parties as long as the property title has not passed.
9.3. The Customer reserves the right to resell the goods being subject to the retention of title in the normal course of business. The Customer assigns as early as now to the Seller the receivables arisen from the resale of the goods being subject to the retention of title to the amount of the unpaid purchase price claims. This shall also apply if the purchased object is processed and then resold. The Customer retains his right to collect the claim even after the assignment. The power of the Seller to collect the claim himself shall remain unaffected. As long as the Customer continues to meet his payment obligations,and there is no default and application for the opening of insolvency proceedings has been filed against the Customer or there is a cessation of payments, the assignment is, however, not revealed and the claim is not collected.
10. Limitation on liability
10.1. The Seller is fully liable for damages resulting from intent or gross negligence. 10.2. In cases of simple negligence, the Seller is liable only if he has violated an obligation the fulfilment of which makes the due performance of the agreement possible in the first place and in the compliance with which the Customer may trust (cardinal obligation). Otherwise, liability in the event of simple negligence is excluded.
10.3. Should the Seller be held liable in accordance with item 10.2 for simple negligence, such liability is limited to the damage with which one would have typically to reckon under the circumstances known when the agreement was concluded.
10.4. The above liability exclusions and limitations do not apply as far as a warranty for the quality of the product or the service has been provided or a defect has been maliciously concealed. Furthermore, the Seller is fully liable for damage to life, body, and health.
11. Binding deadlines
11.1. Binding deadlines need to be set in writing.
11.2. The failure to meet a delivery deadline gives the Customer the right to withdraw from the contract only if the Seller is expressly notified by the Customer no later than on conclusion of the contract that a later performance would no longer make any sense for the Customer and the performance would after that no more constitute any fulfilment of the contract (absolute transaction for delivery by a fixed date).
11.3. In the event of non-compliance with a delivery deadline, the Customer has to grant the Seller a period of 4 weeks for delayed delivery. Only after expiry of this period without result, the Customer has the right to withdraw from the contract. The items 11.2 and 11.4 of these Terms and Conditions remain unaffected by this.
11.4. The Seller is not responsible for delays in performance resulting from Force Majeure telecommunications responsibility (e.g. not providing cooperation services on time, delays by third parties acting on the part of the Customer etc.). In such a case, the Seller is entitled to make up for the respective performance within a period that is equal to the duration of the hindrance plus an appropriate start-up period. The Seller will immediately notify the Customer of delays in performance resulting from Force Majeure.
12. Resale to end consumer
12.1. Any resale by the Customer is admissible only to final consumers. The Customer is not entitled to resell the contract goods to resellers.
12.2. The Customer has to examine the orders and to ensure that no larger quantities are sold to an individual customer, which would be indicative of a planned resale. 12.3. Promotional partners having been named expressly as such by the Seller shall be exempted from the restriction of the items 12.1 and 12.2 of the Terms and Conditions.
13. Brand quality standard
13.1. The Customer is obliged to maintain the high quality standard of the TITAN brand when presenting the contract goods and in external presentation as well as when providing service for the final consumer.
13.2. The Customer shall employ staff trained for this purpose for the sale of the contract goods in order to ensure the best possible quality service.
14. Contractual language, applicable law 14.1. The contractual language is German.
14.2. The concluded sales contracts are governed by the material law of the Federal Republic of Germany under exclusion of UN Convention on the International Sale of Goods.
15. Written form clause
Any changes or additions to this agreement must be made in writing. This also applies to changes of this written form clause.
16. Place of performance, jurisdiction agreement 16.1. Hamburg, Germany is the place of performance.
16.2. As place of jurisdiction, Hamburg is considered as agreed upon between the parties.
17. Severability Clause
Should one of the above stipulations be deemed entirely or partially ineffective due to legal provision, regulations or amendments of a law, all other stipulations remain unaffected by this and continue to be fully applicable.
Revision: February 2015