Terms and Conditions
The following are the General Terms and Conditions under which Mercurius Container Trading GmbH and Mercurius Containers & Logistics S.L., hereinafter referred to as “Mercurius”, provide service to you (“Customer”).
1. General, Scope of application
Our offers, supplies and services are made exclusively based on these sale and delivery conditions (hereinafter referred to as “GTAC”). These GTAC form an integral part of and apply to all agreements which we conclude with our contractual partners (hereinafter referred to as “Customer”) in respect of supplies and services rendered by us.
We do not accept any terms and conditions which deviate from our GTAC unless we have given our prior written consent.
Our GTAC shall also govern any future agreements in respect of services and supplies provided to the Customer.
In case we provide to the Customer any freight forwarding services, the German Freight Forwarders’ Standard Terms and Conditions (Deutscher Speditions- und Logistikverband, Allgemeine Deutsche Spediteurbedingungen (ADSp) – valid as from 01/01/2017) shall take precedence to these GTAC.
2. Offer and conclusion of an agreement
Our offers are non-binding and may be withdrawn at any time until the Customer’s order is confirmed by us, unless the respective offer is expressly marked as binding.
Any details given by us in respect of our supplies or services, as well as our representations of the same shall only be deemed to be approximate unless the fitness for the contractually intended purpose requires exact compliance. Any regular commercial deviations as well as any deviations based on legal regulations or which constitute technical improvements, provided they do not impair the fitness of the goods or services for the contractually intended purpose, shall be admissible.
We reserve all rights of ownership and copyrights to all illustrations, drawings, calculations, brochures and any other documentation provided to the Customer.
By submitting an order, the customer bindingly declares its intention to purchase the ordered delivery item. If the order is not based on an offer issued by us, we are entitled to accept the offer of contract underlying the order within two weeks of its receipt. Acceptance will be declared by written confirmation of order.
If we do not receive supplies from our suppliers or if these do not arrive on time, we are released from our duty of performance and can withdraw from the contract. This applies only in case we are not responsible for the non-delivery, in particular where a congruent covering transaction has been entered into with our supplier. We shall inform the customer without undue delay of the non-availability of the service and refund any consideration already received without undue delay.
3. Prices and terms of payment
Unless anything to the contrary has been expressly agreed, the prices agreed are deemed net prices ex agreed warehouse, exclusive of ancillary expenses. Ancillary expenses, i.e. in particular VAT, customs duties, registration costs and any other taxes and duties, are the Customer’s responsibility.
Unless anything to the contrary has been expressly agreed, we only deliver or make the goods available once the amount invoiced has been received. The Customer shall be obliged to pay the amounts invoiced, without making any deduction whatsoever, either in cash or by way of bank transfer to one of our accounts. In the latter case, bank charges are to be borne by the Customer. Payment is made when the funds are received by us or the amount is credited to our account.
The Customer shall only be entitled to set-off his counterclaims against our claims provided his counterclaims have been awarded by an unappeasable judgment or arbitration award, are undisputed or have been acknowledged by us. The Customer shall only be entitled to exercise his rights of retention or his right to refuse performance in circumstances where he is entitled to set-off his counterclaim. In addition to this, the Customer shall only be authorized to exercise his rights of retention in so far as his counterclaims are based on the same agreement from which our claim arises from.
We may make our performance under the terms of the agreement with the Customer subject to advance payments or security provided by the Customer in case it is agreed that delivery will take place against the provision of an invoice and any justified concerns about the Customer’s creditworthiness arise after the conclusion of the agreement, in particular where attachments are made or other enforcement measures are brought against the Customer or where insolvency proceedings are instituted against the Customer or the institution of such proceedings has been declined due to lack of assets. Should the Customer not be prepared, or not be able to make advance payments or provide security, we shall be entitled to withdraw from the contract.
4. Supplies and services, delivery time and delay in delivery
In so far as nothing to the contrary expressly arises from the agreement, it is agreed that the goods will be made available at the agreed depot/warehouse.
Delivery in various separate batches shall be permissible, in so far as this is reasonable for the Customer.
The beginning of the delivery period specified by us requires that all technical issues have been clarified with the Customer. Moreover, adherence to our delivery obligation requires that the Customer fulfils its obligations in good time and properly, in particular makes the agreed payments and, if applicable, provides any agreed security.
Contrary to the terms of Sec. 286(2) German Civil Code (BGB) and the Spanish Civil Code, we shall only be in default for delay in respect of our delivery once we have received a written warning from the Customer. In case we are in default for delay in respect of our delivery, the Customer shall be required to set us a further grace period of at least two weeks to deliver the goods or services.
Cases of force majeure (e.g. industrial action at either our or our suppliers’ premises, war, fire, transport hindrances, raw material shortage, official or government measures, natural disasters or lock-outs) shall interrupt the delivery time we have quoted for the period during which they exist plus an additional reasonable time to make the goods ready, if required. This shall even apply in case we are in default for delay in delivery. We shall immediately inform the Customer on the occurrence of any case of force majeure and the expected duration of the force majeure event. We shall be entitled to withdraw from the agreement, in whole or in part, in respect of the part of the agreement which has not yet been fulfilled if, based on the duration of the force majeure event, it is not reasonable for us to continue to fulfil the agreement, however by taking the Customer’s interests into consideration.
Our liability for a delay in delivery shall be governed by paragraph 9 of these GTAC.
5. Transfer of risk, shipping, delay in acceptance, warehouse charges
The risk of accidental loss or accidental impairment to the goods shall pass to the Customer upon the goods being made available to the Customer. In case goods are shipped the risk of any loss or any impairment to the goods to be delivered, as well as the risk of delay shall pass to the Customer as soon as the goods have been handed over to the freight forwarder, freight carrier or any other person appointed to handle the shipping. This shall also apply to delivery made in several parts, regardless of whether delivery has been agreed to be “carriage paid” or not. In so far as an acceptance by inspection has been agreed, this shall determine the point in time when the risk is transferred to the Customer. Risk always passes to the Customer where the Customer is in default in accepting the goods or services.
The Customer shall be deemed to be in default in accepting the goods and services seven days after these goods or services have been made available. In such case, the Customer shall be required to pay one EUR per TEU per day as compensation for the damage caused by the delay, unless the Customer can prove that the actual damage incurred was less. The right to assert any further claims, in particular claims for compensation for damage, is reserved if, simultaneously with this delay, the Customer commits further defaults under the agreement, including but not limited to payment defaults , if stipulated by Mercurius.
The Customer shall be obliged to remove any markings, labels and symbols indicating previous possessors of the goods immediately, however no later than within seven days after accepting the goods, if stipulated by Mercurius.
Should the Customer require permits or authorizations under either private or public law for the purpose for which he intends to use the goods or services, the Customer shall be required to bear this risk, attend to and procure the permits or authorizations at its own expense.
6. Retention of title
Until full payment of all our present and future claims arising from the agreement and our ongoing business relationship with the Customer (“Secured Claims”), we shall retain title to the goods (hereinafter referred to as “Reserved Goods”).
The Reserved Goods may not be pledged to a third party or transferred by way of security prior to full payment of the Secured Claims. The Customer shall inform us in writing immediately if and in so far as the Reserved Goods are seized by a third party, so that we can file a claim under Sec. 771 German Code of Civil Procedure (ZPO) and the Spanish Code of Civil Procedure.
The Customer hereby authorizes us to enter any of his business premises and warehouses unhindered, and to collect the Reserved Goods in case the Customer has not adhered to our request for them to be handed over within a reasonable period of time.
The Customer shall be entitled to sell the Reserved Goods in his normal course of business. This shall not apply if it is agreed that the Customer’s claim against the third-party lapses by way of set-off.
The retention of title shall extend to the full value of the products emerging as a result of any processing or mixing of Reserved Goods with other goods or them being connected with each other. In these circumstances, we shall be deemed to be the manufacturer of such products.
For the purposes of security, the Customer hereby assigns to us any claims he has or may have against third parties which arise from the resale of the Reserved Goods, either in their entirety or to the extent of any co-ownership share that we may have in the goods in accordance with the above paragraph. We herewith accept the assignment. The Customer’s obligations specified in sub-paragraph 2 shall also apply in consideration of the claims assigned.
The Customer shall remain authorized to collect the claims set out in sub-paragraph 6. We undertake not to collect the claims for as long as the Customer complies with his payment obligations in relation to us, does not fall into arrears with payment and does not cease to make payment.
7. Duty to inspect the goods and obligation to give notice of defects
The goods are to be inspected carefully immediately after delivery to the Customer or the third party appointed by it. The goods are deemed to have been accepted by the Customer in respect of any obvious defects or other defects that would have been identified had the goods been carefully examined immediately in case we do not receive a notification of the defects within two business days from delivery of the goods.
Regarding any other defects, the goods shall be deemed to have been accepted by the Customer in case we do not receive a notification of the defect within two business days of the defect becoming apparent. In case the defect could have been identified by the Customer at an earlier date, such earlier point in time shall, however, determine the commencement of the period allowed for examination and notification of a defect or deficiency.
In case the Customer fails to inspect the item properly and/or notify defects, our liability in respect of the defect not notified shall be excluded.
8. Warranty, material defects
Should there be a defect in the goods purchased, we shall, at our discretion, be entitled to remedy the defect or deliver a new item to the Customer that is free of defects (Supplementary Performance).
In the event of Supplementary Performance, we shall bear the expenditure necessary to affect such Supplementary Performance, including transport costs, toll charges and the cost of labour and materials. In case Supplementary Performance would only be possible by incurring disproportionate expenses, e.g. because the goods have been taken to a different site than the place of performance and were not taken there in accordance with their intended use, we shall be entitled to refuse Supplementary Performance.
In case we are at fault for the defect, the Customer may only claim damages by complying with the requirements as set out in paragraph 9.
Claims by the Customer for defects in the goods shall be excluded in case of used goods. The Customer may, however, claim damages or claim reimbursement of expenses based on the additional requirements set out in paragraph 9 below.
9. Liability for damages
Our liability to pay damages, on which legal basis whatsoever but in particular in respect of impossibility of performance, delay, defective or incorrect delivery, contractual breach, breach of obligations during contractual negotiations or tort, shall be limited to the terms as set out in this paragraph.
We shall not be held liable for simple negligence caused by our governing bodies, authorised officers, employees or other vicarious agents, unless a fundamental contractual obligation has been thereby breached. Fundamental contractual obligations include the obligation to deliver the goods in good time, that the goods are free of defects which impair the good’s functional capability or fitness for purpose in a material respect, as well as information and protection and custody obligations aimed at enabling the Customer to use the goods as contractually agreed, or ensuring the personal safety of staff of the Customer or protecting the latter’s property from significant damage.
In so far as we are liable for damages under paragraph 9(2), such liability shall be limited to foreseeable damage only. Any further claims for damages, in particular but not limited to claims for indirect losses or for lost profits, shall be excluded.
In so far as we provide technical information services or actively advise the Customer and such information or advice does not form part of the contractually agreed scope of our services owed by us, our services and/or advice shall receive no consideration and all of our liability whatsoever in respect of such services/advice shall be herewith fully excluded.
The foregoing exclusions and limitations of liability shall also apply to the same degree in favour of our governing bodies, authorized officers, employees and other vicarious agents.
The limitations of this paragraph 9 shall not apply to our liability arising from intentional conduct, guaranteed characteristics, injury to life, body or health or to our liability arising under the German Product Liability Act and the Spanish Product Liability Act.
10. Limitation period
The warranty period for defects to the goods shall be one year running from the date on which risk in the goods is transferred. The statutory warranty periods under Sec. 438(1) no 1 and 2, Sec. 438(3), Sec. 479 and Sec. 634a(1) no 2 German Civil Code (BGB) shall remain unaffected as well as in the Spanish Civil Code.
Any other contractual and non-contractual claims for compensation for losses on the part of the Customer are subject to a limitation period of one year. The statutory periods of limitation applicable for claims for damages and reimbursement of expenses based on intent and gross negligence, as well as for claims under the German Product Liability Act and the Spanish Product Liability Act and any claims based on damage arising from injury to life, body or health shall remain unaffected.
Our claims against the Customer are subject to the statutory limitation periods.
11. Prohibition on assignment
The Customer shall not be entitled to assign any claims he may have against us to third parties. Sec. 354a German Commercial Code (HGB) and the Spanish Commercial Code (DRM) shall remain unaffected. The Customer shall likewise not be entitled to assign this agreement or any parts thereof to third parties without our express prior consent.
12. Place of jurisdiction, place of performance and governing law
The exclusive place of jurisdiction shall be Hamburg, Germany for Mercurius Container Trading GmbH and Alicante, Spain for Mercurius Containers & Logistics S.L. We do, however, reserve the right to file an action at the registered address or the business address of the Customer.
The place of performance for any obligations arising from the sale agreement shall be the agreed place of delivery or the agreed warehouse location. In case no place of delivery or depot location has been agreed, the place of performance for any obligations arising from the sale agreement shall be our registered office in Hamburg, Germany for Mercurius Container Trading GmbH and Alicante, Spain for Mercurius Containers & Logistics S.L.
The law of the Federal Republic of Germany shall exclusively apply for Mercurius Container Trading GmbH and the law of Spain for Mercurius Containers & Logistics S.L.
13. Final provisions
In case any individual provision of the agreement concluded between us and the Customer or any provisions of these GTAC are invalid, the validity of the remainder of the agreement shall remain unaffected. If the agreement or these GTAC contain any gaps or omissions, such legally valid provisions shall be deemed to have been agreed that the contracting parties would have agreed in accordance with the economic aims of the agreement and the purpose of these GTAC had they known of such gaps or omissions.