1 General, scope of application

(1) These General Terms and Conditions (GTC) apply to all our – including future – business relationships with our customers (“Customer”). The GTC only apply if the customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the delivery and/or packaging of movable goods (“goods”). Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

(3) Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer’s GTC.

(4) Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

(7) If we have undertaken to provide the customer with additional forwarding services, transport orders and/or storage, the latest version of the ADSp shall apply in deviation from our General Terms and Conditions. We expressly refer to the limitation of liability according to clause 23 of the ADSp. [siehe Anhang].

(8) The place of performance for all obligations arising from the contract, including the customer’s payment obligations, is our registered office in Hamburg.

2 Conclusion of contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership rights and copyrights. The same applies to documents marked as “confidential”. Any disclosure to third parties requires our prior written consent.

(2) The customer’s order for the service shall be deemed a binding contractual offer.

(3) The written acceptance of the contract by us (e.g. by order confirmation) is decisive for the scope and content of our services. Verbal agreements, including those of our representatives or other auxiliary persons, require our written confirmation.

3 Performance period and delay in delivery

(1) The time of performance shall be agreed individually or specified by us upon acceptance of the order. The performance period shall not commence until all technical issues have been finally clarified. A further prerequisite for our performance is that the customer fulfills his obligations – in particular those under § 4 of these GTC – in a timely and proper manner. We reserve the right to plead non-fulfillment of the contract in accordance with. § 320 BGB and the defense of uncertainty pursuant to § 320 BGB. § 321 BGB.

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the customer. Reasons for which we are not responsible include, in particular, unforeseen operational disruptions, strikes, lockouts and failure to deliver the necessary packaging materials on time despite proper and timely ordering.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required.

(4) If an agreed date is delayed for reasons for which the customer is responsible, the customer shall bear any additional costs.

(5) The rights of the customer according to. § Section 9 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

4 Obligations of the customer

(1) The customer shall make the goods to be packaged available in good time and in such a way that they are ready and suitable for the execution of the order. The customer shall provide the correct weight details and other special characteristics of the goods in writing at the latest on delivery of the goods. This information includes, in particular, information on the center of gravity and attachment points for crane and forklift work. Dangerous goods must be declared in writing with all necessary details (DIN data sheet).

(2) The customer shall provide the necessary information on marking in writing in good time before the packaging is carried out.

(3) If additional and/or special treatment of the goods is necessary, the customer shall indicate this in writing. This applies in particular to packaging for sea and land transportation, where goods require sealed packaging with the addition of desiccants or other corrosion protection methods, for example due to a particular risk of corrosion. Unless otherwise agreed in writing, the customer shall hand over parts that are particularly susceptible to corrosion cleaned and treated with suitable contact corrosion protection agents.

(4) The customer shall point out in writing any special risks that may arise from the requirements of the respective transportation route, loading and transportation means (e.g. bulk carriers), excessive loading of containers and packaging and/or any planned subsequent storage – also with regard to environmental pollution.

(5) Unless otherwise agreed in writing, the customer shall provide an appropriate translation of package lists into foreign languages if necessary.

(6) Unless otherwise agreed in writing, the goods shall be packed at our premises. The customer is responsible for the timely delivery and removal of the goods. If packaging is to be carried out outside our premises, the customer must provide sufficient space, energy and any necessary lifting equipment, including the necessary operating personnel, free of charge to ensure that the work is carried out quickly and professionally. The possible working time and type of packaging must be agreed in advance.

(7) Notwithstanding our liability insurance, the customer shall ensure that the goods to be packed are adequately insured (in particular transport, storage and fire insurance).

5 Transfer of risk, acceptance, default of acceptance

(1) Unless otherwise agreed in writing, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon loading of the outgoing vehicle, but at the latest upon acceptance. If the customer is in default of acceptance, this shall be deemed equivalent to receipt or acceptance.

(2) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation in the amount of EUR 100.00 per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch.

Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.

6 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply in euros, ex warehouse, plus VAT. in each case at the current statutory rate of VAT.

(2) We reserve the right to adjust prices accordingly if cost reductions or increases occur in the course of contract processing. This applies in particular to cases of changes in statutory regulations or unforeseeably more difficult working conditions for which we are not responsible. The same shall apply if additional downtime costs are incurred by the personnel deployed by us at the customer’s premises.

(3) The price according to the order confirmation is due and payable within 8 days of invoicing. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.

(4) Upon expiry of the above payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further claims for damages caused by delay. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.

(5) The customer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed and is based on the same contractual relationship.

(6) If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardized by the customer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

7 Retention of title

(1) We reserve title to the packaging materials until full payment of all our current and future claims arising from the contract and an ongoing business relationship (secured claims).

(2) The materials subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties seize the materials belonging to us (e.g. attachments).

(3) If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the materials on the basis of the retention of title and the withdrawal. If the customer does not pay the price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

(4) The customer is until further notice acc. (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our materials, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the materials delivered under retention of title.

(b) The customer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The information in para. 2 shall also apply with regard to the assigned claims.

(c) The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer fulfills his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to Section 6.1. Abs. 3 can be asserted. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer’s authorization to resell and process the goods subject to retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.

8 Claims for defects by the customer

(1) Unless otherwise agreed, we shall pack in accordance with the packaging guidelines of the Bundesverband Holzpackmittel, Paletten, Exportverpackung (HPE) e.V. and, in the case of packaging for sea and land transportation, in compliance with the relevant CTU packing guidelines and the International Convention for Safe Containers (CSG).

(2) Insofar as it has been agreed for brand-new packaging items that the packaging service includes the application of sufficient corrosion protection in accordance with the state of the art, the packaging service shall be deemed to have been provided in accordance with the contract if the corrosion protection lasts for the duration of the agreed preservation period, calculated from the date of packaging. We exclude any liability on our part for cases of corrosion after expiry of the agreed preservation period. Liability for corrosion damage is also excluded for used packaging items. If we are commissioned by the customer to pack items packaged by the customer or third parties for air freight transportation, liability for corrosion damage is excluded unless otherwise expressly agreed in writing.

(3) The customer’s claims for defects presuppose that he has fulfilled his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified immediately in writing. The notification shall be deemed to have been made without delay if it is made within one week, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must notify us in writing of obvious and recognizable defects (including incorrect and short deliveries) within one week of delivery, whereby the timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to properly inspect the goods and/or report defects, our liability for the unreported defect shall be excluded.

(4) In the event of a defect, we reserve the right to choose the type of subsequent performance. We are entitled to make the subsequent performance owed dependent on the customer paying the price due.

(5) The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected packaging material or goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the reinstallation if we were not originally obliged to install it.

(6) Our liability for defects requires proof that there has been a breach of duty on our part and that the defect complained of had its cause before the transfer of risk. This applies in particular to so-called “sledge packaging” without a crate and to preservative packaging that has been opened or damaged due to official measures (e.g. customs inspection or security check in accordance with the German Aviation Security Act (LuftSiG)). If we are commissioned by the customer to pack items packaged by the customer or third parties for air freight transportation, we shall only be liable for damage to the packaged goods if the customer can prove that the damage is due to a defect in our packaging service. We shall not be liable for damage caused by defective packaging by the contractor or third parties. We are not obliged to inspect the packaged goods for existing damage upon receipt.

(7) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the customer.

(8) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(9) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the price. However, there is no right of withdrawal in the event of an insignificant defect.

(10) Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with § 9, even in the case of defects, and are otherwise excluded.

(11) In the event of any breach of duty, the customer must, at our request, declare within a reasonable period of time whether it will withdraw from the contract due to the breach of duty or insist on delivery.

9 Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), for

a) for damages resulting from injury to life, body or health,
b) for damages arising from the not insignificant breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The rights arising from para. 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer under the Product Liability Act.

(4) Insofar as we are not accused of willful breach of contract, liability is excluded – with the exception of damages pursuant to Art. § 9 para. (2) Sentence 2 of these GTC – limited to compensation in the amount of EUR 500,000 per loss event, up to a maximum of EUR 2.0 million per insurance year. The parties assume that the amounts of damage stated in this paragraph correspond to the typically occurring damage, cf. (2) Sentence 2 lit. b) of these GTC.

(5) If the customer requests further insurance cover due to a special risk, we will endeavor to obtain appropriate insurance cover, but do not assume any guarantee against the background of the special features of the insurance market. If we are able to take out further insurance in favor of the customer, the customer shall pay the additional premium.

(6) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

10 Statute of limitations

(1) The general limitation period for claims arising from material defects and defects of title is one year from acceptance or receipt of the packaging material or packaged goods by the customer.

(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the customer acc. § 9 para. (2) Sentence 1 and sentence 2 lit. (a) and under the Product Liability Act shall, however, become time-barred exclusively in accordance with the statutory limitation periods.

11 Choice of law and place of jurisdiction

(1) These GTC and the contractual relationship between us and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg. The same applies if the customer is an entrepreneur within the meaning of § 14 BGB. In all cases, however, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or an overriding individual agreement or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.

Appendix

ADSp, clause 23 – Limitations of liability

23.1 The liability of the Freight Forwarder for damage to goods according to Section 431 Para. 1, 2 and 4 of the German Commercial Code (HGB) is limited as follows, with the exception of damages from pure sea transportation and ordered storage:

23.1.1 to 8.33 Special Drawing Rights for each kilogram, if the Freight Forwarder a. Carrier within the meaning of § 407 HGB, b. Freight forwarder in self-entry, fixed cost or groupage freight forwarder within the meaning of §§ 458 to 460 HGB or c. Custodial forwarder within the meaning of § 461 para. 1 HGB is;

23.1.2 to 2 instead of 8.33 Special Drawing Rights for each kilogram, if the Principal has concluded a Freight Forwarding Contract with the Freight Forwarder for transportation by various means of transport including carriage by sea according to section 22.4.

23.1.3 If the liability of the freight forwarder under section 23.1.1. an amount of 1 million euros per claim, its liability shall also be limited to a maximum amount of 1 million euros or 2 special drawing rights for each kilogram, whichever is higher.

23.2 The liability of the Freight Forwarder for damage to goods is limited to the statutory maximum liability for carriage by sea and for international transportation.

23.3 In cases not covered by sections 23.1 and 23.2 (such as section 461 (2) HGB, sections 280 ff BGB), the liability of the Freight Forwarder for damage to goods is limited according to section 431 (1) HGB. 1, 2 and 4 HGB limited in amount

23.3.1 in the case of a contract of carriage by sea only or carriage by different means of transport including carriage by sea, to 2 special drawing rights for each kilogram,

23.3.2 for all other transport contracts to 8.33 special drawing rights for each kilogram.

23.3.3 Furthermore, the Freight Forwarder’s liability is limited to a maximum amount of 1 million Euros per claim.

23.4 The liability of the freight forwarder for damage other than to goods, except for damage during warehousing, personal injury and damage to goods of third parties, is limited to three times the amount payable for the loss of goods according to sections 23.3.1 or 23.3.2.

23.4.1 Furthermore, the Freight Forwarder’s liability is limited to a maximum amount of EUR 100,000 per claim.

23.4.2 Sections 413 para. 2, 418 para. 6, 422 para. 3, 431 para. 3, 433, 466, 487 para. 2, 491 para. 5, 520 para. 2, 521 para. 4, 523 HGB as well as corresponding liability provisions in international conventions, which may not be deviated from by way of pre-formulated contractual conditions, remain unaffected.

23.5 If the liability of the freight forwarder under sections 23.1 to 23.4 exceeds an amount of EUR 2 million per damage event, his liability, irrespective of the number of claims per damage event, is further limited to a maximum of EUR 2 million per damage event or 2 Special Drawing Rights for each kilogram of lost and damaged goods, whichever is higher; in case of several claimants the freight forwarder is liable proportionally to their claims