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GENERAL TERMS AND CONDITIONS

General Terms and Conditions of HCT Hansa Container Trading GmbH

1.                  GENERAL, SCOPE OF APPLICATION

1.1               All deliveries, services, offers or other legal declarations of HCT Hansa Container Trading GmbH (hereinafter referred to as "HCT") shall be made exclusively on the basis of these General Terms and Conditions (GTC). They are an integral part of all contracts that HCT concludes with its contractual partners (hereinafter also referred to as "Client") regarding the deliveries or services offered by it. They apply in their respective version as a framework agreement also for all future deliveries, services or offers to the Client, even if they are not separately agreed again. They shall only apply vis-à-vis entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law.

1.2               Contradictory terms and conditions of purchase of the Client shall not be valid even without express objection, even if the delivery or service to the Client is carried out without reservation in the knowledge of the Client's deviating or contradictory terms and conditions, unless their validity has been expressly acknowledged in writing by HCT.

2.                 OFFER AND CONCLUSION OF CONTRACT

2.1               All offers made by HCT are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. HCT can accept orders or contracts within fourteen days after receipt. The acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the client.

2.2               The legal relationship between HCT and the Client is solely governed by the written purchase agreement, including these GTC. They fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made prior to the conclusion of the contract are not legally binding and oral agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.  

2.3               Supplements and amendments to the agreements made, including these GTC, must be in writing to be effective. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

2.4               All information provided by HCT regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

3.                 DELIVERY AND DELIVERY TIME

3.1               Delivery shall be ex warehouse. If the goods are to be collected, the Client shall provide suitable means of transport. HCT is entitled to refuse loading of the goods in case of a technically unsuitable or defective means of transport. Any delays and additional costs will be borne by the Client in case of refused loading.

3.2               At the request and expense of the Customer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, HCT shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.

3.3               Insofar as a container is the subject of the purchase agreement, collection shall only take place on a suitable chassis. HCT may refuse to load the goods if the Client is unable to provide a technically equipped transport vehicle. Any delays and costs shall be borne by the Client in the event of refused loading.

3.4               If deadlines and dates for deliveries and services of HCT are promised, they are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. In the case of sale by delivery to a place other than the place of performance, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

3.5               HCT may - without prejudice to its rights arising from default on the part of the Client - demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance deadlines by the period during which the Client fails to meet its contractual obligations towards HCT.

3.6               HCT is not liable for impossibility of delivery or for delays in delivery, as far as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which HCT is not responsible. If such events make the delivery or performance of HCT significantly more difficult or impossible and the hindrance is not only of temporary duration, HCT is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery or service deadlines are extended or the delivery or service deadlines are postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to HCT.

3.7               HCT is only entitled to make partial deliveries if the partial delivery is usable for the Client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Client does not incur any significant additional expenses or costs as a result (unless HCT agrees to bear these costs).

3.8               In case of intra-community delivery or export delivery, the Client is obliged, for the purpose of VAT exemption, to submit the proof of delivery and the confirmation of receipt, which should be in the German or English language, or the proof of export within fourteen days of delivery. HCT reserves the right to demand, in addition to the net invoice amount, payment of a deposit in the amount of the applicable VAT, which will be returned to the Client after receipt of the documents. If the Client does not provide the required evidence even after a reminder, HCT is entitled to charge the Client the VAT for the executed delivery and to retain the deposit.

3.9               If HCT is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, its liability for damages is limited in accordance with Clause 8 of these General Terms and Conditions.

4.                 PLACE OF PERFORMANCE, TRANSFER OF RISK, ACCEPTANCE

4.1               Unless otherwise stipulated, the place of performance for all obligations arising from the contractual relationship is the storage facility or the place of business of HCT.

4.2               The risk of accidental loss and accidental deterioration of the goods shall pass to the Client at the latest when the goods are handed over, in the case of sale by delivery to a place other than the place of performance, when the goods are delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment (the start of the loading process being decisive). This also applies if partial deliveries are made or HCT has taken over other services (e.g. shipping). Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Principal is in default of acceptance.

4.3               If the Client is in default of acceptance, culpably violates other obligations to cooperate or if the delivery is delayed for other reasons for which the Client is responsible, HCT is entitled to demand compensation for the damage incurred by it in this respect, including any additional expenses (e.g. storage and handling costs).

The proof of a higher damage and any legal claims (in particular compensation of additional expenses, reasonable compensation, termination) remain unaffected. The customer shall be entitled to prove that no damage or only significantly lower damage than the aforementioned lump sum has been incurred. Further claims or rights remain reserved.

4.4               The consignment will only be insured by HCT against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client's expense.

5.                 PRICES AND TERMS OF PAYMENT

5.1               The prices shall apply to the scope of services and deliveries specified in the order confirmations. The prices are quoted in Euro ex warehouse plus packaging, the statutory value added tax, in the case of export deliveries customs duties as well as fees and other public charges. Additional or special services, in particular the transport costs ex warehouse and the costs of any transport insurance requested by the Customer in the case of mail order purchases), shall be charged separately.

5.2               Unless otherwise agreed in writing, the total invoice amount (without deductions) shall be due for payment immediately upon invoicing. The date of receipt by HCT is decisive for the date of payment. Even in the context of an ongoing business relationship, HCT is entitled at any time to perform the delivery or service only against advance payment. A corresponding reservation will be declared at the latest with the order confirmation.

5.3               Upon expiry of the aforementioned payment period or of the payment period agreed upon in individual cases, the client will be in default. During the period of default, interest shall be charged on the invoice amount at the applicable default interest rate. We expressly reserve the right to claim further damage caused by default, such as commercial interest on arrears (§ 353 HGB).

5.4               Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.

5.5               HCT is entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known to HCT which are likely to substantially reduce the creditworthiness of the Client and which jeopardize the payment of HCT's outstanding claims by the Client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

6.                 RESERVATION OF OWNERSHIP

6.1               HCT retains title to the goods sold until full payment of all our present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).

6.2               The Client is obliged to treat the goods subject to retention of title (reserved goods) with care; in particular, he is obliged to insure them adequately at replacement value against fire, water and theft damage at his own expense. If maintenance and inspection work is required, the Customer must carry this out in good time at its own expense.

6.3               The Reserved Goods may neither be pledged to third parties nor assigned as security before full payment of the secured claims. In order for HCT to be able to take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the Client must immediately notify HCT in writing if an application is made to open insolvency proceedings or if third parties have access to the Retained Goods belonging to HCT. Insofar as the third party is not in a position to reimburse the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Client is liable for the loss incurred by HCT.

6.4               In the event of a breach of contract by the Client, in particular in the event of non-payment of the purchase price due, HCT is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the reserved goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; HCT is rather entitled to demand only the return of the goods and to reserve the right of withdrawal. After taking back the goods, HCT is entitled to sell them, the proceeds of sale are to be credited against the liabilities of the Client - less reasonable costs of sale.

6.5               The Client is entitled to resell the Reserved Goods in the ordinary course of business. However, he already now assigns to HCT all claims in the amount of the outstanding final invoice amount (including the statutory value added tax), which accrue to him from the resale against his customers or third parties. The Client remains authorized to collect these claims even after the assignment. The authority of HCT to collect the claims itself remains unaffected; however, HCT undertakes not to collect the claims as long as the Client fulfills his payment obligations towards HCT and does not fall into arrears. If this is the case, however, HCT can demand that the Client discloses 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.

6.6               HCT shall release the securities to which it is entitled at the request of the Client to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent upon HCT.

7.                 WARRANTY, LIABILITY FOR DEFECTS

7.1               The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the Client arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by HCT or its vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.

7.2               The delivered goods must be carefully inspected immediately after delivery to the Client or to the third party designated by him. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they are deemed to have been approved by the Client if HCT does not receive a written notice of defect within seven working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the client if HCT does not receive a written notification of defects within seven working days after the time at which the defect became apparent; if the defect was already apparent to the client at an earlier time during normal use, however, this earlier time is decisive for the beginning of the period for notification of defects. At the request of HCT, a rejected delivery item is to be returned to HCT carriage paid. In the event of a justified complaint, HCT will reimburse the costs of the most favorable shipping route; this does not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

7.3               In the event of material defects of the delivered goods, HCT is first obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. HCT can make the subsequent performance owed dependent on the Client paying the purchase price due. In turn, the client is free to retain an appropriate part of the purchase price in relation to the defect.

7.4               In the event of a replacement delivery, the Customer shall return the defective item in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or the re-installation if HCT was not originally obliged to install it. HCT 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 there is actually a defect. Otherwise, it may demand reimbursement from the Client of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Client.

7.5               In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of subsequent performance, the Customer may withdraw from the contract or reasonably reduce the purchase price. If a defect is due to the fault of HCT, the Client may claim damages under the conditions stipulated in Clause 8.

7.6               The warranty does not apply if the Client modifies the delivery item or has it modified by a third party without the consent of HCT and the elimination of the defect becomes impossible or unreasonably difficult as a result. In any case the client has to bear the additional costs for the elimination of defects resulting from the modification.

7.7               Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.

8.                 LIABILITY FOR DAMAGES DUE TO FAULT

8.1               HCT's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Clause 8, insofar as fault is involved in each case.

8.2               HCT is liable for damages within the scope of fault liability in case of intent and gross negligence. In the case of simple negligence, HCT shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for due diligence in its own affairs) only

a)        for damages resulting from injury to life, body or health,

b)        for damages arising from the breach of a material contractual obligation (obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

8.3               The limitations of liability resulting from Clause 8.2 shall also apply to the same extent in the event of breaches of duty by or for the benefit of persons for whose fault HCT is responsible in accordance with statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed. The same applies to claims of the Client under the Product Liability Act.

8.4               Any further liability for damages than provided for in clauses 8.1 to 8.3 shall be excluded, irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property pursuant to Section 823 of the German Civil Code (BGB). The limitations of liability shall also apply insofar as the Client demands reimbursement of futile expenses instead of a claim for compensation for damage in lieu of performance.

8.5               Insofar as HCT provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.

8.6               Due to a breach of duty that does not consist of a defect, the Client may only withdraw or terminate the contract if HCT is responsible for the breach of duty. A free right of termination of the client (in particular according to § 651, 649 BGB) is excluded. In all other respects the legal requirements and legal consequences apply.

9.                 PLACE OF PERFORMANCE, CHOICE OF LAW, PLACE OF JURISDICTION

9.1               The laws of the Federal Republic of Germany shall apply to these General Terms and Conditions and all legal relationships between us and the Customer; the UN Convention on Contracts for the International Sale of Goods shall not apply.

9.2               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 - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg. However, we shall also be entitled to sue the customer at his place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

9.3               Insofar as the purchase contract or these GTC contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the loophole.

NOTICE::

The client acknowledges that we store data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserve the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the fulfillment of the contract.

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