|General Terms and Conditions of Sale, Delivery and Payment
I. General Terms
1. These General Terms and Conditions (hereinafter referred to as “Terms and Conditions”) of heba-tec GmbH (hereinafter also referred to as “Seller” or “heba-tec”) apply exclusively to all present and future business and contractual relationships between heba-tec and the Purchaser.
2. Our Terms and Conditions are exclusively valid and applicable; different, modifying and/or contradicting general terms and conditions of the purchaser are only valid and applicable if and to the extent we explicitly agreed thereto in writing.
3. The purchaser accepts these terms and conditions by placing an order or by accepting delivery. These terms and conditions are applicable to any and all future business and contractual relationships with the same purchaser, even if there is no express agreement to this extent.
4. All documentation submitted in connection with the offer, including but not limited to drawings, illustrations, designs remains the property of heba-tec; all appertaining intellectual property rights are and remain vested in heba-tec. The purchaser is only permitted to disclose the documentation to third parties if and to the extent heba-tec agreed thereto in prior in writing. The purchaser is obliged to return the documentation upon non-placement of the order. heba-tec may disclose the purchaser’s documents to third parties, if such third parties have been retained by heba-tec as subcontractors.
II. Offer and Conclusion of Contract
1. Our offers are not binding and subject to change without notice.
2. If and to the extent that there is no prior agreement on the price and quality of the goods, the price and product lists of heba-tec are applicable in accordance with the intended function of the goods as understood by heba-tec.
3. Safety-relevant issues are exclusively governed by the safety regulations applicable in Seller’s country, unless the purchaser has submitted proper evidence of diverging safety regulations in his country. The compliance with additional safety requirements is subject to a surcharge and a prior express agreement to this extent.
4. Contracts between the purchaser and heba-tec are only concluded upon receipt of our written order confirmation. The contents of the contract are governed by the terms in our written order confirmation.
5. If and to the extent that the purchaser requests subsequent modifications, any such modification request is subject to confirmation by seller either in writing or in text form (Sec. 126a German Civil Code). The purchaser will bear any and all costs arising out of or in connection with such subsequent modification.
III. Prices, terms of payment, letters of credit, set-offs
1. Unless expressly stipulated otherwise, all prices are ex work net prices (VAT excluded) quoted in Euro; they do not include packaging, installation and assembly. The costs of returning the packing material are also not included.
2. heba-tec is entitled to reasonably adjust the prices if and to the extent that the price factors have changed in case the goods are ready for shipment after a period exceeding four months after order confirmation has expired.
3. Unless expressly stipulated otherwise, all payments are to be effected in the currency valid at the registered seat of the seller without any transaction deductions within thirty days of the invoice date.
4. If the purchaser defaults on due payments for more than six weeks, all remaining outstanding payments become instantly due and payable and the seller is entitled to repudiate the contract after granting the purchaser a reasonable grace period. The purchaser is obliged to instantly return all performances rendered by the seller. If the seller suffers damages therefrom, they are entitled to liquidated damages to the amount of 15% of the selling price without producing evidence. The seller is entitled to claim higher damages which must be properly evidenced, the purchaser is entitled to provide evidence of lesser damages. Default interest rate is charged at 8% above the base lending rate.
5. In case of a substantial deterioration of the purchaser’s financial situation, which according to banking standards significantly diminishes the purchaser’s creditworthiness, the seller is entitled to render performance of all orders which have not been completed at this point in time only against the purchaser’s performance. The seller hereby expressly reserves all further rights. All of the seller’s other claims against the purchaser which are not due become instantly due and payable under the aforementioned circumstances.
6. In case of the purchaser defaulting on payment, the seller is entitled to refuse partial deliveries or partial performances until the outstanding claims have been settled. In this case the purchaser is also entitled to render performance only against counter-performance.
7. In the event complaints in respect of the quality of the goods have been made by the purchaser, the purchaser is entitled to withhold payment of such an amount as is reasonable and justified in view of the alleged defects. The foregoing notwithstanding, the purchaser is only entitled to withhold payment if a claim in respect of the quality of the goods has been filed in writing or in text form (Sec. 126a German Civil Code) and if the claim is obviously justified or uncontested. The purchaser has no right to withhold payment if his claims based on defects of the goods are barred by the statute of limitations.
8. The purchaser may only set off claims which are undisputed by seller or have become res judicata.
9. The seller only accepts bills of exchange and checks if there is a respective prior written agreement to this extent, if the purchaser bears bear any and all discount charges and expenses and only on account of payment. The payment is only deemed to be effected if the entire outstanding amount has been irrevocably credited to one of the seller’s accounts.
10. In case of payments by letter of credit, the letter of credit has to be subject to the current “Uniform Customs and Practice for Documentary Credits” by the International Chamber of Commerce, Paris.
11. Payments will be used to settle the oldest outstanding accounts plus the accrued default interest and associated costs, payments will be allocated in the following order: costs, interest, principal claim.
IV. Delivery, Delivery Terms, Delay in Delivery
1. The stipulated delivery period commences upon dispatch of the order confirmation, but in no instance before the purchaser has submitted all required documents, permits and releases and not before a stipulated down payment has been effected. If the aforementioned conditions are not met, the delivery period will be extended accordingly. This is not applicable if and to the extent the seller is legally responsible for the delay.
2. The delivery period is adhered to if the goods have left the factory or if the purchaser has been advised of readiness of shipment before its expiration.
3. Delivery periods and delivery dates are adequately extended in all cases of force majeure, strikes, lock-outs, and in the event of acts of German or foreign government, disruption of energy supply, unforeseeable material interruptions or disruptions of the seller’s business operations for which the seller is not legally responsible, including but not limited to impediments resulting out of or in connection with the stipulated supply of raw materials or any other event of force majeure, if and to the extent that the aforementioned events have a verifiable substantial impact on the completion or the delivery of the goods. The same is applicable in case of delayed or flawed deliveries to the seller, including but not limited to cases in which one of the seller’s suppliers fails to effect a proper and timely delivery due to the aforementioned events.
4. In event of a delay in delivery for any reason the purchaser is entitled to reject acceptance of the delayed delivery after the lapse of a reasonable grace period which – in consideration of the characteristics of the materials – has to amount of a minimum amount of six weeks. The purchaser has no further or additional claims against the seller under the aforementioned circumstances. Upon seller’s request, the purchaser is obliged to notify the seller within a reasonable period of time whether or not he repudiates the contracts or insists on delivery.
5. The seller is entitled to effect partial deliveries unless these are unreasonably cumbersome for the purchaser. Concerning order-related manufacturing respectively customized components deviations from the ordered quantities up to ± 10 % are admissible.
6. In case of default in performance or impossibility of delivery, the purchaser’s claims for damages are limited to foreseeable damages. The aforementioned limitation of liability is not applicable, if and to the extent the delay in performance or impossibility of delivery is due to gross negligence, willful intent or malice of the seller, his legal representatives or vicarious agents or in cases of mandatory statutory liability for injuries to life, body or health.
7. If delivery is delayed upon the purchaser’s request, the purchaser will be liable for the costs of storing the goods after the expiration of a period of one month after advice of readiness for shipment, in case of the goods being stored at the seller’s premises, the purchaser will be charged 0.5 % of the invoice amount per month or part thereof.
After the expiration of a specified reasonable grace period, the seller is further entitled to dispose of the goods and to effect delivery to purchase within a reasonable extended delivery period.
V. Transfer of Risk
The risk of accidental loss and deterioration passes to the purchaser when the goods are handed over to the first carrier, forwarding agent or any other person charged with the execution of the shipment. This is also applicable if further partial deliveries are to be effected or if the seller is responsible for shipping costs, delivery or installation.
In the event of delivery being executed by the seller’s staff or by a carrier belonging to the seller, the risk of accidental loss and deterioration passes to the purchaser ex works. Upon the purchaser’s request, the seller will insure the delivery at the purchaser’s costs against theft, breakage, losses and damages by transport, fire and water and other insurable risks. In case of dispatch being delayed due to reasons for which the seller is not legally responsible, the risk of accidental loss and deterioration passes to the purchaser upon the date of readiness for shipment; the seller is however obliged to take out insurance specified by the purchaser at the purchaser’s costs.
VI. Retention of Title
1. The seller retains title to all goods delivered to the purchaser (hereinafter referred to as “Retained Goods”) until all outstanding debts in connection with the business relationship with the purchaser have been completely paid regardless of the seller’s claims are related to the Retained Goods or not.
2. At the purchaser’s request, the seller will release securities if and to the extent that their value exceeds the value of the seller’s outstanding claims by more than 10%. The seller may choose the securities which are released.
3. For the duration of the retention of title, the purchaser is obliged to hold the Retained Goods for the seller like a bailee and to store them in such a way that the seller’s ownership of the Retained Goods is in evidence. The purchaser may neither pledge nor assign the Retained Goods as security for the duration of the retention of title.
4. For the duration of the retention of title, the purchaser is only entitled to sell the Retained Goods in the ordinary course of business and subject to the condition that the purchaser (= Reseller) receives payment by his customer or retains title to the retained goods until the customer has effected complete payment. The purchaser hereby assigns his claim against customer pro rata to the seller. The seller hereby accepts the assignment.
5. The purchaser is entitled to transform and process the Retained Goods as well as blend and combine them with other goods on the seller’s account. The purchaser has no claims against the seller resulting from such transformation, processing, blending or combination.
The purchaser will hold the new goods as bailee for the seller and exercise the diligence of a prudent business man. The transformed, blended or processed goods (“New Goods”) are deemed to be retained goods. In the event of the transformation, processing, blending or combination of the Retained Goods, the purchaser transfers partial joint title to the new goods pro rata to the seller. The exact proportion of the joint title will be determined according to the value of the retained goods respectively the value of the transformation, processing, blending and combination services at the time of transformation, processing, blending or combination.
If and to the extent the purchaser acquires sole ownership in the new goods, the seller and the purchaser hereby agree that the purchaser transfers partial joint title to the New Goods to Seller; the proportion will correspond to the pro rata the value of the retained goods. In the event of the New Goods being sold, the purchaser hereby assigns all claims resulting from the resale to the seller in the amount of the seller’s outstanding claims against the purchaser. The seller hereby accepts the transfer and the assignment.
6. If and to the extent the seller can establish justified interest, the purchaser has to provide the seller with all information necessary for the collection the purchaser’s claims against his customers and the purchaser has to hand over all required documentation.
7. The purchaser is regularly authorized to collect assigned claims resulting from the resale of the goods. This is not applicable if the seller revokes the aforementioned authorization for good cause (including but not limited to default of payment, cessation of payment, opening of bankruptcy or insolvency proceedings or other comparable circumstances, which suggest the purchaser’s illiquidity). In this event and after having given proper warning of the disclosure of the assignment by way of security respectively the collection of the assigned claims and after observance of a proper notice period, the seller is entitled to demand disclosure of the assignment by way of security and to collect the assigned claims from customer.
8. Neither the withdrawal nor the exercise of the retention of title nor the seizure of the retained goods by the seller is to be construed as repudiation of the contract by the seller, unless the seller has expressly stated the contrary.
9. The purchaser is obliged to notify the seller instantly in writing in case of attachments, seizures or any other foreclosure procedures into the retained goods or claims transferred to the seller. The purchaser has to advise the executing authority and the creditor instantly that the goods are the property respectively partial property of the seller and that the claim has been transferred to the seller.
10. If the goods are delivered abroad and if the validity of the retention of title is subject to a special registration or further conditions, The purchaser is obliged to create these conditions respectively to inform the seller of such conditions and assist the seller in meeting those. If the destination country does not recognize the retention of title, the purchaser is obliged to provide the seller with equivalent collateral.
VII. Warranties and Statute of Limitation
1. If the purchaser or the purchaser’s agent accepts the goods after inspection, any and all warranties for obvious defects are excluded, unless the purchaser respectively the purchaser’s agent has reserved his rights relating to the aforementioned defects.
Notices of lack of conformity resulting from defects or false quantities must be sent to the seller in writing or in text form (Sec. 126a German Civil code) with the indication of the invoice and delivery number, product name and product number no later than eight days after receipt of the goods. The purchaser must notify the seller of hidden defects no later than seven days after their discovery. The seller has to be given the opportunity to evaluate and investigate the defect. Regularly this opportunity is granted by returning the goods in question, unless stipulated otherwise.
2. Provided that the goods are defective when the risk of loss passes to the purchaser and that the defect occurs during the warranty period, the seller is obliged to remedy the defect, effect a new delivery or to render new performance at his own costs at his discretion.
3. The seller is only liable for defects of the goods if and to the extent these defects occur during the intended and proper use of the goods in accordance with the seller’s operational instructions and if and to the extent that they are the result of defective construction or inferior workmanship. The seller excludes any and all liability for defects and damages caused by improper use or handling, unauthorized modifications or changes, including but not limited to improper installation etc., by the purchaser or a third party or defects and damages which are the result of regular wear and tear. Minor deviances from the stipulated specifics do not constitute a defect if the goods’ fitness for use is not impaired.
4. The seller’s liability for defects or damages caused by the use of tools provided by or stipulated by the purchaser is hereby expressly excluded unless the seller was aware of the unsuitability of the tools or was intentionally or grossly negligently unaware of the lack of fitness.
5. If the seller manufactures pursuant to the purchaser’s drawings, the seller’s liability is expressly limited to compliance with the drawings. If the seller is entrusted with the solution of structural, design or construction tasks, the purchaser can only claim damages if and to the extent that the goods fail to meet the general state of the art.
6. Technical or operational advice provided by the seller is strictly non-binding, for information purposes and without any liability on behalf of the seller. Such advice does not in any way release the purchaser from his obligation to conduct proper testing of the goods with regard to their fitness for the intended use.
7. In the case of delivery of defective goods the seller is obliged to render replacement performance, the seller may at his discretion choose to either deliver replacement goods which are free from defects or to remedy the defect. The purchaser is obliged to accept the replacement performance. If a replacement performance is unsuccessful or unreasonable, the purchaser may at his discretion repudiate the contract or demand an appropriate reduction of the purchase price.
The replacement performance is deemed failed upon the second unsuccessful attempt to render replacement performance. With regard to the seller a replacement performance is unreasonable, the costs connected with it are disproportionate.
8. Any and all warranty claims are excluded if the purchaser resells or transforms the goods after he discovered the defect or should have discovered the defect, unless the purchaser can provide proper evidence to the fact that the transformation of resale of the goods was necessary in order to prevent greater damages.
9. All contractual claims against the seller are subject to a period of limitation of one year from receipt of the goods. This period of limitation is not applicable to claims for damages to life, body and health or to claims for damages caused by willful or grossly negligent breach of duty by the seller’s legal representatives or vicarious agents, or in case of the breach of a quality guarantee. Claims for damages caused by simple negligence of the seller, his legal representatives or vicarious agents are expressly limited to the typical foreseeable damages.
10. We particularly exclude responsibility for costs resulting from any damages to parts provided by the purchaser in the course of our production by coating, combining or mixing and rendering the parts rejects.
11. The purchaser has no claims against the seller with regard to the costs and expenses incurred in course of supplementary performance, especially transport, travel and labor costs and costs of materials are excluded to the extent, that such expenses increased because the delivered item has subsequently been relocated to another place than the purchasers place of business, unless such relocation is the intended stipulated use of the product.
12. The purchaser only has the rights to recourse against the seller pursuant to Sec. 478 German Civil Code (Entrepreneur’s right to recourse) if the purchaser (now as the seller) and his purchaser have not stipulated warranties exceeding the mandatory statutory warranties. With regard to the scope of the purchaser’s right to recourse against the seller pursuant to Sec. 478 German Civil Code Sec. VII para. 10 of these Terms and Conditions are applicable.
13. Any and all of the purchaser’s warranty claims caused by defective products, especially but not limited to claims caused by defective goods, consequential damages or lost profits, which not covered in this Sec. VII or in Section VIII are hereby expressly excluded. This is not applicable in case of fraudulent concealment of a defect, non-compliance with a quality guarantee, damages to live, body, health or liberty or in case of a willful or grossly negligent breach of contract by the seller. The aforementioned clauses do not change the rules of burden of proof to the purchaser’s detriment.
VIII. Intellectual Property Rights
1. With regard to goods manufactured in his factory the seller is only liable for the infringement of intellectual property rights, like copyright and patents granted for territory of the Federal Republic of Germany and only to the extent the goods have not been manufactured according to the purchaser’s specifications. If and to the extent that the patent holder respectively the owner of the intellectual property right asserts claims against the purchaser or the seller, the contracting parties undertake to assist each other and to cooperate in the defense against the alleged claim.
2. The seller’s liability for parts of the delivered goods which were not manufactured in his factory is expressly limited to the assignment of his claims against the responsible subcontractors to the purchaser.
3. Observance of and compliance with the applicable foreign trade and payment laws and any and all relevant laws and regulations of the seller’s country and those of the destination country is the sole responsibility of the purchaser.
4. The purchaser is obliged to inform the seller of any specific requirements, regulations and conditions resulting from the aforementioned laws and regulations.
In the event that the contractually stipulated destination country is not the Federal Republic of Germany, the purchaser is solely responsible for the verification of the existing applicable intellectual property rights. The purchaser is solely responsible and liable for the non-violation of intellectual property rights in the respective destination country.
The purchaser is obliged to indemnify the seller and hold him harmless from any costs, damages, especially damage payments resulting out of or in connection with a third party asserting infringement of intellectual property rights abroad.
IX. Tools and Appliances
1. The seller will charge the purchaser pro rata tool costs for the manufacture of tools and appliances which are necessary for the execution of the purchaser’s order. Unless expressly stipulated otherwise, these tool costs are payable without any deductions, 50% upon placement of the order and 50% within 30 days after submission of reference samples.
2. Subsequent requests by the purchaser for modifications of the tools which result in a postponement of the submission of the reference samples are the purchaser’s responsibility and entitle the seller to demand instant reimbursement of tool costs incurred so far. The purchaser is liable for all costs and expenses relating to the manufacture of new tools respectively subsequent modification request by the purchaser.
3. The tools will exclusively be used for the execution of the purchaser’s orders. The tools remain the property of the seller, as the tool costs charged to the purchaser cover only a part of the seller’s operational expenses.
4. The seller is entitled to reimbursement of the pro rata tool costs for which the purchaser has not been charged under paras. 1 – 3, if the purchaser does not place an order within 60 days after submission of the reference samples.
5. The seller will hold the tools and appliance for subsequent orders of the purchaser and insure them against loss and damages due to fire and water. If the purchaser wants more complete coverage, he can take out additional insurance at his own costs. The seller’s obligation to store the tools and appliances expires, if the purchaser does not place an order relating to the tool in question for two years after the last delivery. The seller is obliged to keep the tools and appliances in good working condition at his own costs, to take due care of them, ensure maintenance and service and all necessary proper repairs which result from his legal liability without any undue delay at his own costs. The purchaser assumes all costs arising out of or in connection with repairs due to normal wear and tear and the replacement costs (e.g. replacement tool) if the tool has become inoperable due to normal wear and tear. Unless expressly stipulated otherwise, normal tear and wear is calculated based on commercially customary quantities.
X. Place of Performance, Place of Jurisdiction, Governing Law, Severability Clause
1. Burgthann / Ezelsdorf is the place of performance for all obligations resulting out of or in connection with the purchaser’s order.
2. If the purchaser is a merchant, a public law entity or a special public law fund, the place of jurisdiction for all claims against the seller is either at the seller’s registered seat or at the seat2. If the purchaser is a merchant, a public law entity or a special public law fund, the place of jurisdiction for all claims against the seller is either at the seller’s registered seat or at the seat of the subsidiary of the seller which executed the delivery. heba-tec is also entitled to sue the purchaser at his regular place of business.
3. These Terms and Conditions and all contractual relationships between the seller and the purchaser are exclusively governed by and will be construed in accordance with the laws of the Federal Republic of Germany with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).4. If any portion or provision of these Terms and Conditions should be or become invalid or unenforceable in whole or in part, then such invalid or unenforceable portion or provision will be deemed severed from this Agreement and the remainder of these Terms and Conditions Agreement will remain in full force and effect.
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