NMC Europe Food & Non-Food Production and Distribution GmbH
General Terms and Conditions of Sale and Delivery (GTC)
§1 Scope
1.1 These general terms and conditions apply exclusively to the business relationships between NMC Europe Food & Non-Food Production and Distribution GmbH (hereinafter referred to as “NMC”) and customers and suppliers in current and future business relationships. NMC does not recognize any conditions that conflict with or deviate from these GTC and hereby expressly objects to them. Conflicting terms and conditions of business and purchase of the customer are only valid if NMC expressly agrees to them in writing.
1.2 Verbal agreements must be confirmed by NMC to be effective.
1.3 These General Terms and Conditions are permanently available online on the NMC website at https://www.toper-germany.de. The right to make changes is reserved at any time, even without prior notification.
§2 Offers and order
2.1 NMC's offers are aimed exclusively at commercial customers, are always subject to change, are limited in time and cost estimates are non-binding. The presentation of the products on the Internet does not constitute a legally binding offer, but merely an invitation to the customer (invitatio ad offerendum) to submit a corresponding offer to conclude a purchase contract. Illustrations, recordings, dimensions, weight and performance information (e.g. utility values, tolerances, load capacity or technical data) are to be understood as approximate. They are non-binding unless they are expressly designated as binding. NMC reserves the property rights and copyrights to cost estimates, drawings and other documents. The information contained may not be made accessible to third parties. They are non-binding. The same applies to information and instructions from NMC to customers that are given to customers without the express conclusion of a consulting contract by NMC, in particular about the use or suitability of the product for the intended use. The company reserves the right to make design changes/improvements.
2.2 By submitting an offer, the customer declares that he is an entrepreneur within the meaning of Section 14 of the German Civil Code. An offer is only considered accepted if it is confirmed in writing by NMC. By accepting our order confirmation without objection, the buyer accepts these conditions. The content of the order confirmation from NMC alone is decisive for the type and scope of the delivery. Subsequent changes, side agreements and verbal declarations by employees or representatives are only effective with written confirmation from NMC. Furthermore, orders are deemed to have been accepted if NMC executes the order. If the purchase contract offer is accepted, the creditworthiness of the customer is assumed. If the customer's financial circumstances deteriorate significantly or if NMC subsequently learns of a significant deterioration in assets that had already occurred before the purchase contract was accepted, NMC is entitled to withdraw from the purchase contract or to demand payment in advance.
2.3 An offer is also considered accepted if the customer has made an agreed down payment. If the customer's financial circumstances deteriorate significantly between the down payment and the final payment before delivery, NMC is entitled to withhold the down payment as compensation. A repayment of the deposit is excluded.
2.4 In the case of custom-made products, NMC is entitled to deviate from the scope of delivery ordered in order to ensure functionality or suitability for the intended use. The customer is liable for ensuring that the execution of the special order he has placed does not impair the rights of third parties. In this respect, NMC is not obliged to carry out an examination.
§3 Prices
3.1 NMC's prices are in euros and apply EXW Hamburg (Peutestr. 53 - 20539 Hamburg / Room 310) INCOTERMS 2010, excluding packaging, transport, insurance, assembly, customs and the like plus the statutory VAT costs of packaging and VAT will be invoiced separately, unless the delivery is not subject to VAT under German tax law. In the case of deliveries abroad, the customer is also responsible for any taxes, duties and levies that may be incurred. Unless otherwise agreed, NMC is entitled to determine the type of shipment.
3.2 Insurance will only be taken out at the express request of the buyer. Transport packaging is to be properly disposed of by the buyer at his expense in accordance with Section 3 Paragraph 1 No. 1 of the Packaging Ordinance.
3.3 Price changes after the conclusion of the contract are reserved in the event of a change in the exchange rate from USD to EUR of more than 10% compared to the time of order confirmation. In the event of an exchange rate change within the meaning of sentence 1, the purchase price will be adjusted in accordance with the exchange rate change. The right to adjust prices also applies in the event of a price change by the manufacturers, administrative expenses, storage costs or an increase in transport costs, regardless of the means of transport and the transport route between the manufacturer and NMC or NMC and the customer.
§4 Official Approval
It is the task of the client or the customer to obtain all official or private law permits. Costs of any approval and testing procedures are at the expense of the client or the customer.
§5 Delivery time and performance date
5.1 The delivery time and performance date are not fixed dates unless expressly agreed otherwise in writing. Partial deliveries are permitted.
5.2 The delivery time is the period from receipt of the agreed down payment by the customer to notification of dispatch by NMC to the customer.
5.3 NMC's delivery obligation is suspended if the customer is in arrears with payments due.
5.4 Transport times are not part of the delivery time and are shown separately in the offer.
§6 Passing of risk
6.1 The place of performance for all deliveries is Hamburg (EX-WERK - Peutestraße 53, 20539 Hamburg, room 310), subject to a special written agreement between NMC and the customer. The delivery period begins on the day of the order confirmation by NMC, but not before receipt of the down payment as accepted by NMC. The delivery notification from the manufacturer or the dispatch notification from NMC is deemed to be the delivery.
6.2 Claims for exceeding the delivery period are excluded unless NMC acted with intent or gross negligence, which the customer has to prove. All kinds of disruptions to operations at the forwarding agent and supplier, as well as events of force majeure, entitle NMC to extend the delivery time appropriately and, if the specific circumstances require it, to cancel the delivery obligation in whole or in part. Circumstances that make delivery unreasonably difficult or impossible through no fault of NMC are equivalent to force majeure.
The customer is only entitled to claims for damages due to non-performance or breach of secondary obligations in the event of intent.
6.3 In the absence of any deviating agreements, NMC is entitled to determine the means of transport and transport routes itself.
6.4 When the goods are made available at Peutestraße 53, 20539 Hamburg, room 310, the risk of accidental loss, accidental deterioration of the goods or possible transport damage passes to the customer.
§7 Terms of payment
7.1 Payment is made in accordance with the terms of payment agreed in the order confirmation or the pro forma invoice. Payment is only deemed to have been made when NMC has received it in the form of cash payment or bank transfer.
7.2 If payments due from the order confirmation or the pro-forma invoice are outstanding after notification of the dispatch according to §5.2, the customer must pay the remaining amount within 3 working days. If the customer is in default, NMC is entitled to charge a default fee of 25% of the remaining amount and to claim default interest at the applicable statutory default interest rate.
7.3 The invoices for delivery, assembly, consulting and customer services are payable immediately without deduction after receipt of the invoice (§ 271 BGB).
7.4 If due invoices for delivery, assembly and customer services are open at the same time, incoming payments are always considered as performance for assembly and customer services.
7.5 Invoices issued by NMC can only be offset against counterclaims that have been recognized by NMC or have already been determined by a court.
7.6 If bills of exchange are accepted after prior agreement, they will only be accepted on account of performance. Discount and bill of exchange charges plus sales tax in accordance with private bank rates shall be borne by the customer.
7.7 The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
7.8 The services, quantities and number of items determined by NMC are decisive for the price calculation, unless the customer objects immediately.
§8 Default
8.1 The invoice recipient is in default of payment without a reminder (§ 286 Para. 2 No. 1 BGB) if the invoice has not been paid by the specified due date.
8.2 At the latest when the payment deadline according to 8.1 expires, the customer is in default. When default occurs, NMC is entitled to charge a default fee of EUR 40.00 and default interest at the applicable statutory default interest rate. The assertion of a higher damage caused by delay, which must be proven, remains reserved.
8.3 If the customer is more than 7 days in arrears with an agreed installment payment, he is in arrears with regard to the outstanding partial amount. From the 8th day, late fees of 0.5% of the remaining amount but at least €15/day will be charged.
§9 Application-Technical Advice
9.1 A written consulting contract is required for binding technical application advice. All information provided by NMC outside of a consulting contract, such as the use or suitability of a product, is non-binding information.
9.2 Application-related advice is given by NMC to the best of its knowledge based on the information provided by the user.
The customer undertakes to inform NMC immediately and comprehensively about the special features of the intended place of use, insofar as they can affect the proper functioning of the delivery item. Furthermore, the customer undertakes to inform NMC of all statutory, official and operational safety and other regulations that apply to the installation and operation of the product at the intended place of use of the delivery item.
All statements and information about the suitability and use of NMC's products and machines do not release the customer from checking whether the products are suitable for the intended purposes.
9.3 If the customer violates the obligation to cooperate according to 9.2 by not providing any information, incomplete information or incorrect information despite being requested to do so with a reasonable deadline, he loses all claims against NMC from the consulting and assembly contract to be concluded separately.
§10 Assembly / Installation
10.1 Assembly and ready-to-operate installation outside the factory will be charged separately by NMC or an instructed representative if this has been expressly agreed in writing.
10.2 The assembly or installation does not include the creation of the foundations, support beams, exhaust air systems, gas, exhaust air and electricity connections and the like. The foundations to be provided must be properly executed, dry and tied by the customer. The customer must ensure that electrical connections, gas and exhaust air connections or other relevant technical facilities are available directly up to the assembly site. The fitter must be granted unimpeded access to the assembly site. Delays in assembly in this regard are at the expense of the customer. These will also be charged separately if a flat-rate fee has been agreed for assembly. The customer must provide auxiliary staff, means of transport within the customer's premises and specific tools free of charge if required.
§11 Right of Withdrawal
Since the buyer declares by submitting an offer to conclude a purchase contract with NMC that he is an entrepreneur within the meaning of Section 14 of the German Civil Code (Section 2.1 of the General Terms and Conditions), the buyer does not have a right of withdrawal.
§12 Warranty and Liability
12.1 NMC guarantees that the goods sold are free from material and manufacturing defects at the time of dispatch or at the time of receipt at the Hamburg works and have the contractually guaranteed properties.
12.2 The customer must inspect the goods for defects immediately after delivery upon receipt. Recognizable defects in the goods, incorrect or incomplete deliveries, deviations in quantity or dimensions must be reported by the customer to NMC in writing immediately, but no later than 3 days after delivery or receipt of the goods. If the customer does not report any defects within this period, the goods are deemed to be free of defects and accepted in accordance with the contract.
12.3 Transport and packaging damage must be recorded by the customer in writing on the freight documents, confirmed by the carrier and reported immediately to the carrier (§ 377 HGB). The customer must assert his own claims against the carrier (transport or forwarding company) (§ 421 HGB) if the transport order has been carried out by NMC.
12.4 Defects that cannot be discovered within the period specified in 12.2 even after careful inspection must be reported to NMC in writing immediately after discovery. The same applies to defects that occurred during the warranty period. If the seller is not informed of a defect, any warranty is void.
12.5 NMC assumes no warranty or liability for deliveries from third-party companies. NMC assigns any warranty rights and/or claims for damages against third-party companies to the customer for assertion.
12.6 If no specific quality of the delivery item has been agreed, the statutory warranty right applies. NMC assumes no liability for public statements by the manufacturer or other third parties (e.g. advertising).
12.7 The warranty within Germany is limited to one year. The warranty period can be extended for an additional fee. The warranty period begins when the goods are picked up or notification of pick-up capability. If the goods are shipped on behalf of the customer, the period begins when the carrier picks them up. For entrepreneurs, claims for defects become time-barred 12 months after the transfer of risk for the goods made available by NMC. There is no warranty for used goods.
12.8 If material defects already exist at the time of the transfer of risk, the customer is generally entitled to have the defect removed (rectification) or to have a defect-free item delivered (replacement delivery). NMC is free to make a replacement delivery at the prices valid at the time of the complaint or to rectify the defect.
12.9 NMC is entitled to prior inspection of the defect at the place of performance within a reasonable period of time.
12.10 NMC is free to refuse to rectify or replace a specific delivery if this is actually or economically impossible.
12.11 An economic impossibility for the selected type of subsequent performance is to be assumed if the costs of the subsequent performance exceed the value of the delivered goods by at least 10% at the time of the transfer of risk. NMC must be given reasonable time and opportunity to carry out repairs or replacement deliveries. The customer is not entitled to substitute performance during this period. NMC may offer repairs or replacements at least twice. Only after an unsuccessful attempt may the buyer withdraw from the purchase contract. Replaced parts become the property of NMC.
12.12 NMC is free to appoint third parties to carry out the rectification. There is no contractual relationship between the customer and the third party. There is no guarantee for subsequent improvement by third parties.
12.13 If NMC or the manufacturer does not succeed in remedying the defect within a reasonable period of time, the customer is entitled to reduce the purchase price appropriately, withdraw from the contract or demand compensation. A withdrawal from the contract and the assertion of damages is excluded in the case of insignificant material defects.
12.14 In the event of complaints, the date of purchase must be proven on the basis of the invoice. The warranty does not cover normal wear and tear or electronic and electrical parts. The warranty expires if the customer changes the delivered goods himself.
12.15 NMC is not liable for slightly negligent breaches of a non-essential contractual obligation. For slightly negligent breaches of essential contractual obligations, NMC's liability is limited to compensation for typical damage that is foreseeable for NMC. NMC is not liable for non-contractual or unforeseeable consequential damages. Excluded from the limitation is liability for bodily injury.
12.16 Complaints cannot be recognized in the following cases in particular: unsuitable, improper storage, use or use, faulty or improper assembly or commissioning by the buyer or third parties, regular maintenance not carried out in accordance with the manual, natural wear and tear, changes or interventions, faulty or negligent treatment, in particular excessive strain, unsuitable operating and maintenance equipment, replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, provided these are not attributable to NMC.
12.17 NMC is not liable for damage or malfunctions that are based on the fact that the customer operates the delivered goods with a technical functional unit that was not supplied by the manufacturer for the intended use.
12.18 NMC is not liable for a lack of economic success, lost profits, missed savings or indirect damage or refusal of approval by authorities and offices.
12.19 Wear parts, electrical and electronic parts are excluded from the NMC warranty and the manufacturer's guarantee.
12.20 Exclusion of liability for external links: NMC refers to other websites on its website by means of links. The following applies to all links:
NMC expressly states that it has no influence whatsoever on the design and content of the linked pages. NMC expressly distances itself from all content of third-party websites linked to http://www.nmc-europe.eu and https://www.toper-germany.deand does not adopt this content as its own. This declaration applies to all displayed links and content of the linked pages.
§13 Manufacturer's Warranty
13.1 The guarantee is a voluntary service provided by the manufacturer (manufacturer's guarantee). When it comes to warranty, the manufacturer decides what the warranty covers and how long it lasts.
13.2 After the warranty period (of one year) has expired, the buyer must assert his warranty rights directly against the manufacturer.
13.3 Spare parts provided by the manufacturer to the customer as part of the voluntary manufacturer's guarantee are free of charge. The customer has to bear the shipping costs, taxes, import fees and other charges in the destination country.
§14 Claims for Damages
14.1 Claims for damages and expenses by the commercial customer ("claims for damages"), regardless of the legal reason, in particular due to breach of obligations arising from the contractual relationship and from tortious acts, are excluded unless such claims are expressly provided for in these terms of delivery and payment.
14.2 Insofar as the customer is entitled to claims for damages despite this clause, these shall become statute-barred after 12 months.
§15 Exemption for deliveries abroad or shipments abroad
If a delivery is made abroad, the customer shall release NMC from any liability for any third-party claims which may be based on the legal regulations of the respective country of destination, but which go beyond the liability regulated in § 12. The same applies if the customer, after delivery of the product in Germany, takes the delivery item abroad.
§16 Retention of title
The delivered goods remain the property of NMC until full payment has been made.
§17 Copyright
NMC is not liable if rights, in particular copyrights, of third parties are infringed upon by the execution of the order placed by the customer. The customer must indemnify the contractor against all claims by third parties due to such violations of rights.
§18 Place of Performance and Jurisdiction
18.1 The law of the Federal Republic of Germany applies to the exclusion of the UN Sales Convention.
18.2 Place of performance and place of jurisdiction is Hamburg - Germany.
18.3 If one of these provisions is or becomes invalid, or if the contract concluded on the basis of this provision has a loophole, the validity of the remaining provisions shall remain unaffected.
§19 Final Provisions
With regard to the translations of the website published by NMC, the German version is binding in case of doubt.