General Terms and Condition

TOPtainer ContainerManagement & Sales

We would like to inform you that these are our German-business Terms
and Conditions translated to English. Please click on our US-office to see

the Terms and Conditions for the US-business. Thank you.

General Conditions

1.1The following Standard Terms and Condition shall apply to all deliveries, services, offers or any other declarations relating to legal transactions of TOPtainer. Any conflicting or deviating terms and conditions of the customer shall not become part of the agreement, unless this is expressly agreed and confirmed in writing. The foregoing shall apply even if TOPtainer does not explicitly contradict these terms and conditions or performs deliveries/services without reservation.
1.2These Terms and Conditions shall apply to all future deliveries, services or declarations relating to legal transactions to the customer also, even if these have not been explicitly restated as the basis for said services.
1.3Any agreements deviating from these Terms and Conditions as well as any amendments and supplements to existing agreements shall require express written confirmation to become effective.

2. Offers and Purchase Orders

2.1Offers made by TOPtainer are subject to confirmation unless other-wise defined in the offer.
2.2An agreement shall only come into effect by written acknowledgement of the order or upon actual delivery/rendering of service by TOPtainer.
2.3The descriptions of the containers in the offers, confirmations of orders etc. are only approximate in nature. Used containers shall be sold on the basis of their current condition.

3. Prices and Terms of Payment

3.1All prices are net ex works or warehouse of TOPtainer plus statutory VAT and any expenses associated with the sale or delivery, such as statutory duties, costs of transportation, insurance, etc.
3.2All invoices shall become due for immediate payment without deductions. If, in exceptional cases, payment by instalment has been agreed and should the customer fail to pay the instalments by the agreed deadlines, TOPtainer shall be entitled to request immediate payment of the total outstanding amount.
3.3The customer is only entitled to set-off and/or assert his rights of retention if his counterclaims have legal force, are undisputed or are accepted by TOPtainer.
3.4Should the customer fall into arrears on a due instalment or should doubts exist as to his ability to pay, TOPtainer shall not be under any obligation to make deliveries/render services to the customer under this or any other agreement concluded with the customer and may postpone performance until such a time as all due payments have been made, and may furthermore cancel any payment deadlines granted.

4. Delivery

4.1Unless nothing has been agreed to the contrary in writing, TOPtainer will make all deliveries ex works or warehouse.
4.2Specified delivery periods are non-binding, unless explicitly confirmed as binding in writing. Changes to orders shall result in the cancellation of any agreed deadlines.
4.3TOPtainer shall be entitled to render partial performance/deliveries and to invoice them separately.
4.4War, strike, lock-out, stoppages and traffic delays and any instances of force majeure, even such as may affect TOPtainerÕs suppliers, shall release TOPtainer from its obligation to render the service/make delivery for the entire duration of the interruption and to the full extent of their consequences Ð this will also apply if they render the performance of the agreement in question uneconomical for the foreseeable future. Agreed service/delivery periods shall be extended by a reasonable length of time. Moreover, such occurrences shall entitle TOPtainer to withdraw from the agreement without the customer being entitled to damages.

5. Passing of risk

5.1The risk of accidental loss or deterioration of the container shall transfer to the customer ex works or warehouse. The same shall apply if upon the customer's request TOPtainer effects delivery to the customer's domicile.
5.2If the container is not delivered to the customer, for example, due to the fact that the container remains in the custody of a third party, the transfer of risk shall take effect as soon as the customer enters into a rental or, indeed, any other form of agreement with the third party. In this context it is of no consequence whether the agreement has been concluded by TOPtainer as the customer's authorised agent or by the customer in his own name.
5.3The customer must notify both the haulage contractor and TOPtainer of any complaints resulting from damage in transit immediately or, if such losses provide for time limits, within said time limits.

6. Liability in case of defects

6.1The customer must inspect the services/deliveries immediately following receipt and issue notices of loss for any discernable damages within 7 working days to TOPtainer. Otherwise the deliveries/services are regarded as having been accepted.
6.2All claims arising from a defect must be asserted in writing.
6.3Marginal deviations of the delivered containers from the offer, confirmation of order and/or samples do not account as defect. Liability for defects shall further not extend to natural wear and tear nor to such defects that occurred following the transfer of risk as a consequence of incorrect or negligent handling, excessive loads or due to such influences not provided for in the agreement etc. Furthermore, TOPtainer shall not accept liability to the extent that the delivered components display signs of premature wear-and-tear in accordance with their natural quality or the nature of their use.
6.4In the event of justified and timely complaints, the customer shall be entitled, at TOPtainerÕs choice, to remedy either in the form of remedy of the defect or the delivery of a product that is free of defects.
6.5Only if TOPtainer is unwilling or unable to provide remedy within a reasonable period of time, or if TOPtainer fails to remedy the defect a second time, shall the customer be entitled, according to legal requirements, to a reduction in payment or to rescission of the contract, provided that the breach of obligation is not immaterial. All claims for damages or reimbursement of costs lodged by the customer, even in the event of recourse according to §§ 478, 479 BGB (German Civil Code), shall be governed by section 7.
6.6Provided that the purchase of the container is not regarded as purchase of consumer goods, the statutory period of limitation shall be one year and, in the case of used containers, six months. If the purchase is a purchase of consumer goods, this period of limitation shall be two years and, in the case of used containers, one year.
6.7To the extent that the containers are destined for international use, TOPtainer shall not accept any responsibility for the compliance with earlier or current provisions under public law or customs regulations in the Federal Republic of Germany or other countries. All costs and risks associated with importing the container into or using it in the Federal Republic of Germany or other countries shall be borne by the customer.

7. Liability for damages and reimbursement of costs

7.1In the event of any breach of obligation, even in the event of faulty delivery, tort or manufacturer's liability, TOPtainer shall only be liable - subject to the legal statutory of liability - for damages and reimbursement of costs in the event of intent or gross negligence or in the event of the breach of a cardinal obligation.
7.2In any case, TOPtainer's liability shall be limited to the contractually typical losses foreseeable at the time of the conclusion of the agreement. This shall, however, not apply to cases of intent.
7.3In the event of damages as a result of delay attributable to ordinary negligence, TOPtainer shall only be liable for an amount not exceeding 5 % of the agreed purchase price.
7.4Irrespective of section 7.3, any liability for ordinary negligence shall be excluded with the exception of breaches of essential obligations, and shall in any event be limited to the purchase price.
7.5The exclusion of liability in accordance with sections 7.1 to 7.4 shall not apply in the event of the assumption of a guarantee, the malicious concealment of a defect, as well as for damages resulting from loss of life, physical harm or damage to health and in cases of compulsory liability under the product liability act.
7.6All claims for damages and reimbursement of costs Ð irrespective their legal basis - shall be considered time barred one year following the delivery of the container to the customer, unless mandatory legal stipulations provide for a longer period of limitation.
7.7On no account shall TOPtainer be liable for atypical incidents of loss or unforeseeable consequential damages or such damages as the customer may reasonably have been expected to avert himself.
7.8In so far as TOPtainer's liability is excluded, this shall also extend to the personal liability of the staff, management, representatives and vicarious agents of TOPtainer.

8. Retention of Title

8.1Delivered containers shall remain the property of TOPtainer until all claims resulting from the current business relationship with the customer have been satisfied.
8.2In the case of the Customer being in breach of contract, in particular in the case of default in payment, TOPtainer is without grace period entitle to take back the delivered container at the expense of the customer. In the withdrawal no rescission of contract is made unless expressly stated by TOPtainer. TOPtainer is authorised to realise the delivered containers after taking them back, the realisation proceeds are to be credited against the accounts payable of the customer Ð less fair costs of realisation.
8.3The customer shall only be permitted to resell the reserved goods following payment in full of the purchase price and any other liabilities resulting from the business relationship. At this point, however, the customer hereby assigns to TOPtainer all claims - up to but not exceeding the payment amount to which TOPtainer is entitled - which arise from the rental of the container or any resale contrary to the terms of the agreement. The customer is still authorised to collect this claim. TOPtainer`s power to collect its assigned claims remains unaffected. TOPtainer will, however, not collect the claims itself as long as the customer fulfils his contractual obliga-tions, in particular he does not default in payment. Should this be the case, the customer is obliged to disclose the assigned claims and their debtors to TOPtainer, to give the required information on the collection of the claims, to hand over all the documents and to inform the debtors (third parties) of the assignment.
8.4Should the securities provided exceed TOPtainers claims by in excess of 25%, TOPtainer shall release such securities at his own discretion at the customers request.
8.5The customer must notify TOPtainer immediately should the container be seized or impeded in any other way by third parties. All costs incurred in warding off the assertion of third party rights shall be for the customers account.

9. Purchase agreements with lessees

 If the purchase agreement relates to a container that is on lease to the customer at the point in time when the agreement was concluded, the customer shall be obligated to pay the agreed rental fee until the purchase price has been paid in full.

10. Place of Performance, Legal Venue, Govering Law

10.1If one or more of this conditions or any provision of contract should be or become invalid, the provision shall be substitute by a valid one which as closely as possible achieves the economic purpose of the invalid provision. The other provisions shall remain unaffected thereby and remain in full force.
10.2Place of performance and jurisdiction shall be Hamburg, in so far as the customer is a merchant. TOPtainer shall, however, at his own discretion also be entitled to bring action against the customer at his normal legal domicile.
10.3All contractual relation between TOPtainer and its Customer shall be governed exclusively by German Law. The United Nations Convention on Contracts for the International Sale of Goods is not applicable.

11. English Translation

11.1In case of doubt the German wording of the General Terms and Conditions shall prevail.