General Terms and Conditions
General Terms and Conditions of HET Elastomertechnik GmbH
- Offers and quotations, conclusion of contracts
- a) The following General Terms and Conditions apply to all contracts, deliveries, services and quotations. Any deviations from these General Terms and Conditions shall only be effective if we confirm this in writing,
- b) The purchasing conditions of the buyer are hereby rejected. They shall not be recognized even if we do not expressly object to them again upon receipt. Insofar as our terms and conditions correspond to those of the buyer, the corresponding clauses shall apply.
- c) Our General Terms and Conditions apply only to companies as defined by Section 310.1 of the German Civil Code (BGB).
- Prices, changes to prices
- a) The prices are stated ex works excluding value added tax, unless expressly agreed otherwise. They are non-binding for repeat orders.
- b) If in doubt, the quantities or weights determined at the supplier’s premises prior to dispatch shall be decisive for the calculation of prices.
- Delivery, Acts of God
- a) Delivery deadlines and delivery dates are only binding after we have confirmed them in writing. An agreed upon delivery period begins with the date of our confirmation of order, but not before the buyer has performed the collaborative acts incumbent upon him, in particular he has made any agreed upon down-payment.
- b) Delivery deadlines and delivery dates refer to the time of dispatch ex works. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched in time through no fault of ours. Without prejudice to our rights arising from default on the part of the purchaser, the delivery periods shall be extended by the period of time by which the purchaser is in default with his obligations to us under this contract. This applies to delivery dates accordingly.
- c) Should the buyer not issue any instructions to us, the choice of transport route shall be made at our best discretion without liability for the selection of the cheapest mode of shipment.
- d) In the event of acts of God, we shall be entitled to postpone delivery or performance, even within the default period, for the duration of the hindrance plus a reasonable grace period. If the delivery or performance is impossible or unreasonable due to the aforementioned circumstances, we may withdraw from the contract in whole or in part. Claims for damages are excluded in these cases, unless we have concluded the contract in culpable ignorance of the impending act of God and/or culpably failed to take reasonable precautions to avoid the delivery hindrance. The following shall be deemed equivalent to acts of God: strikes, legal lock-outs, export and import bans, shortages of raw materials and energy, fire, significant disruptions to operations or transport and other circumstances for which we are not responsible and which make delivery or performance unreasonably difficult or impossible, regardless of whether they occur at our company, our supplier or one of their subcontractors. The buyer can demand a declaration from us as to whether we wish to withdraw from the contract or deliver within a reasonable period of time. If we do not make such declaration, the buyer may withdraw from the contract.
- e) We are entitled to refuse to execute the contract:
- as long as the buyer is in default with taking delivery or acceptance of a delivery or with a payment from any contract concluded with us;
- if, after conclusion of the contract, we become aware of a significant deterioration in the financial circumstances of the buyer or such deterioration occurs thereafter, unless advance payments have been made or payments have been secured in another manner acceptable to us (such as bank guarantees).
- f) In the case of purchase contracts for goods to be delivered on call, the call must be made within the agreed period. If partial deliveries are agreed upon, the call must be made in due time. If the call is repeatedly not made in due time or for an unreasonably large partial quantity, we are entitled to withdraw from the contract and to demand compensation.
- a) Place of performance for the delivery is the place of delivery. The risk of loss or deterioration of the goods is transferred to the purchaser as soon as the shipment has been handed over to the parties carrying out the transport. This applies regardless of whether the shipment is dispatched from the place of performance and regardless of who bears the freight costs.
- b) In the case of delivery of returnable packaging (such as lattice boxes, Euro pallets, etc.), the buyer must return the corresponding returnable packaging to the forwarding agent after emptying it, following our next delivery. In any case, the buyer shall bear the risk of loss or damage to the returnable packaging or means of transport or shipment before they are returned to the carrier. The buyer has no right of retention to our means of transport and shipping.
- Payments, interest on late payments
- a) In the case of a payment by bill of exchange, the discount charges shall be borne by the buyer and are payable immediately in full, without deduction. We assume no liability for correct and timely presentation and submission of protests. Bills of exchange and checks are only accepted on account of performance. Discounts are fundamentally only granted upon written agreement; they are not granted if the buyer is in arrears with the payment for previous deliveries.
- b) Regardless of their agreed due date and of the term of bills of exchange accepted and credited, our claims shall become due immediately if the purchaser defaults on payment of an invoice or, in the case of payment by installments, on payment of two installments, or if facts become known after conclusion of the contract which, according to our prudent commercial judgment, cast doubt on the creditworthiness of the buyer. In this case we are also entitled, without prejudice to further legal rights, to make outstanding deliveries only against advance payment or to demand appropriate collateral.
- c) We may offset incoming payments at our own discretion against individual claims out of several claims to which we are entitled. In case of default of payment by the buyer, the statutory provisions shall apply. We reserve the right to claim further damages against presentation of proof.
The customer may only offset our claim for remuneration against claims which we do not dispute or which have been legally established.
- Reservation of ownership
- a) The goods shall remain our property until full payment of our existing claims, including the balance in our favor in the case of an open account. If bills of exchange and checks are accepted, the goods shall remain our property until they have cleared.
- b) Any processing or treatment of goods subject to retention of ownership shall be carried out on our behalf, free of charge and without obligation for us in such a way that we are to be regarded as the manufacturer in accordance with Section 950 of the German Civil Code (BGB). If the customer processes the goods with other goods that do not belong to us, we shall be entitled to co-ownership of the new object in the proportion of the invoice value of the goods subject to retention of ownership to the other processed goods at the time of processing. For the new object resulting from the processing, the same applies as for the goods subject to retention of ownership.
- c) The buyer is only entitled to resell the goods subject to retention of ownership within the scope of proper business transactions. The buyer is not permitted to pledge the goods or transfer them by way of security. In the event of a garnishment or other impairment of our rights by third parties, we are to be informed immediately and supported in the assertion of our rights.
- d) Claims of the buyer arising from the resale of the goods subject to retention of ownership are hereby assigned to us as collateral. The buyer is authorized to collect the claims within the scope of proper business transactions as long as he meets his payment obligations as agreed.
- e) In the event of a significant deterioration in the financial situation of the buyer, in particular in the event of default of payment, suspension of payments, initiation of insolvency and bankruptcy proceedings, the direct debit authorization granted to the buyer shall expire. In this case we are also entitled to withdraw from the contract and to demand the return of the goods subject to retention of ownership. The buyer shall reimburse us for the costs of pick-up and utilization of the goods subject to retention of ownership. The buyer shall send us a detailed list of the goods still subject to retention of ownership, as well as a list of the third-party debtors of the claims assigned to us. Irrespective of this, we shall be entitled at any time to make appropriate determinations at the buyer’s premises in order to safeguard our rights, in particular to enter storage rooms and business premises and to inspect all necessary documents and books.
- f) We shall release the collateral to which we are entitled at our discretion if the value of the collateral granted to us exceeds our claims by more than 10%.
- Warranty claim, right of retention and right of set-off
- a) Notification of complaints by the buyer regarding obvious defects can only be submitted to us in writing within 14 days of receipt of the goods. Hidden defects must be reported within the statutory warranty period. Insofar as the buyer is a person as defined by Section 24 of the German General Terms and Conditions of Business Act (German AGB-Gesetz) (businessman, legal entity under public law, etc.), he may only give notice of hidden defects within 14 days of their discovery. If the notification of defects is not made in due time, the goods shall be deemed to be accepted in accordance with the contract.
- b) in the event of warranty claims due to material defects, we shall be entitled to the immediate provision of a sample of at least one of the delivered goods, in particular the goods already used, for the purpose of inspection.
- c) Insofar as justified warranty claims can be made by the buyer under the above provisions, claims for damages, in particular those resulting from the use or processing of defective material delivered, are excluded. Liability for culpable injury to life, body or health remains unaffected. In all cases, only delivery of replacement, withdrawal or reduction can be claimed. The assertion of a right of retention and the offsetting of counterclaims arising from the delivery contract are excluded.
- d) Warranty claims shall not apply if
- the buyer refuses to allow us to make a replacement delivery or
- the buyer remedies alleged defects himself or has them remedied by third parties without our written consent.
- e) Our application-related advice, both verbal and written, is non-binding, also with regard to any third-party industrial property rights, and does not exempt our customers from their own examination of our products for their suitability for the intended processes and purposes. Should liability on our part nevertheless be a possibility, we shall only pay damages to the same extent as for quality defects. The buyer is responsible for observing the laws and official regulations applicable to the use of our products.
- a) The seller is only liable for damages resulting from unlawful acts, culpa in contrahendo, special breach of contract, impossibility of performance or delay if these were caused by the conduct of his authorized representatives or his vicarious agents with intent or gross negligence, notwithstanding the provision under Section 831 Paragraph l Sentence 2 of the German Civil Code (BGB). This also applies to claims for compensation for indirect and/or consequential damages. The exclusion of liability shall not apply in the event of an initial inability to perform the contract or in the event of a breach of material contractual obligations (cardinal obligations) or a liability without fault, such as under the German Product Liability Act (Produkthaftungsgesetz). The limitation of liability shall not apply if a guarantee pursuant to Section 443 of the German Civil Code (BGB) on our part is intended to protect the buyer from consequential damages.
- b) Insofar as we have excluded or limited our liability, this also applies to the personal liability of our employees, workers, salaried employees or other vicarious agents.
- Applicable law
All disputes shall be settled in accordance with the substantive law of the Federal Republic of Germany. The application of uniform laws on the international purchase of movable goods and on the conclusion of international purchase contracts for movable goods shall be excluded.
- Place of jurisdiction
The place of jurisdiction shall be the company’s registered headquarters.
Last updated: 03/2016