Terms and Conditions
General Terms and Conditions of HET Elastomertechnik GmbH
1. Offers, conclusion of contracts
a) The following General Terms and Conditions shall apply to all contracts, deliveries, services and offers. Deviations from these General Terms and Conditions shall only be valid if confirmed by us in writing.
b) The purchaser's terms and conditions of purchase are hereby rejected. They shall not be recognised even if we do not expressly object to them again after receipt. Insofar as our terms and conditions coincide with those of the purchaser, the coinciding clauses shall apply.
c) Our General Terms and Conditions shall only apply to businesses within the meaning of Section 310(1) BGB (German Civil Code).
2. Prices, price changes
a) Prices are ex works, excluding value added tax, unless expressly agreed otherwise. They are without obligation for repeat orders.
b) In case of doubt, the quantities or weight figures determined at the delivery plant before dispatch shall be decisive for the calculation of prices.
3. Delivery, force majeure
a) Delivery periods and delivery dates shall only be binding upon our written confirmation. An agreed delivery period shall commence on the date of our order confirmation, but not before the purchaser has fulfilled its obligations to cooperate, in particular has made any agreed advance payment.
b) Delivery periods and delivery dates refer to the time of dispatch from the factory. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own. Delivery periods shall be extended, without prejudice to our rights arising from the purchaser's default, by the period during which the purchaser is in default with its obligations to us under this contract. This shall apply correspondingly to delivery dates.
c) Unless the purchaser gives us instructions, the choice of transport route shall be at our best discretion, without liability for the selection of the most economical shipping method.
d) Events of force majeure shall entitle us — even during a default — to postpone delivery or performance for the duration of the hindrance and a reasonable start-up period. If delivery or performance is rendered impossible or unreasonable by the aforementioned circumstances, we may withdraw from the contract in whole or in part. Claims for damages shall be excluded in these cases, unless we entered into the contract with culpable ignorance of the imminent force majeure event and/or culpably failed to take reasonable precautions to avoid the delivery hindrance. Force majeure shall include strikes, lawful lockouts, import and export bans, shortages of raw materials and energy, fire, significant operational or transport disruptions, and other circumstances beyond our control which make delivery or performance unreasonably difficult or impossible, regardless of whether they occur at our premises, at our sub-supplier's premises or at the premises of any of their sub-suppliers. The purchaser may require us to declare whether we wish to withdraw or to deliver within a reasonable period. If we do not respond, the purchaser may withdraw from the contract.
e) We shall be entitled to refuse performance of the contract:
- as long as the purchaser is in arrears with the acceptance of a delivery or with a payment under any contract concluded with us;
- if significant deteriorations in the purchaser's financial circumstances become known to us after the conclusion of the contract or occur thereafter, unless advance payments have been made or payments have been secured in another manner acceptable to us (e.g. bank guarantee).
f) In the case of purchase contracts on call, the call-off must be made within the agreed period. In the case of agreed partial deliveries, the call-off must be made in good time. If the call-off is repeatedly not made on time or involves an unreasonably large partial quantity, we shall be entitled to withdraw from the contract and to claim damages.
4. Transport
a) The place of performance for delivery shall be the dispatch point. The risk of loss or deterioration of the goods shall pass to the purchaser as soon as the consignment has been handed over to the persons carrying out the transport. This shall apply regardless of whether the dispatch takes place from the place of performance and who bears the freight costs.
b) In the case of delivery in exchange packaging (e.g. lattice boxes, Euro pallets, etc.), the purchaser must return equivalent exchange packaging to the carrier after emptying, following our next delivery. The purchaser shall in any case bear the risk for the loss or damage of exchange packaging or transport and shipping materials prior to their return to the carrier. The purchaser shall have no right of lien over our transport and shipping materials.
5. Payments, default interest
a) In the case of payment by bill of exchange, discount charges shall be borne by the purchaser and shall be payable immediately without deduction. We accept no liability for the correct and timely presentation and protest. Bills of exchange and cheques are accepted only on account of performance. Discounts are generally only granted by written agreement; they shall not be granted if the purchaser is in arrears with the payment of earlier deliveries.
b) Our claims shall become due immediately, regardless of their agreed maturity and the term of bills of exchange accepted and credited, if the purchaser defaults on payment of an invoice or, in the case of instalment payments, defaults on payment of two instalments, or if facts become known after the conclusion of the contract which, in our dutiful commercial judgement, cast doubt on the purchaser's creditworthiness. In such cases we shall also be entitled, without prejudice to further statutory rights, to carry out outstanding deliveries only against advance payment or to demand adequate security.
c) We may apply incoming payments at our discretion to any one of several claims due to us. In the event of default in payment by the purchaser, the statutory provisions shall apply. The right to claim further damages upon proof is reserved.
6. Set-off
The purchaser may only set off against our remuneration claim with claims that we do not dispute or that have been established by final and binding court decision.
7. Retention of title
a) The goods shall remain our property until full payment of our existing claims, including the balance in our favour in the case of a current account. In the case of acceptance of bills of exchange and cheques, the goods shall remain our property until they are honoured.
b) Any processing or transformation of the reserved goods shall be carried out on our behalf, free of charge and without any obligation on our part, in such a way that we are to be regarded as the manufacturer pursuant to Section 950 BGB. If the purchaser processes the reserved goods with other goods not belonging to us, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed goods at the time of processing. In all other respects, the same shall apply to the new item resulting from processing as to the reserved goods.
c) The purchaser shall only be entitled to resell the reserved goods in the ordinary course of business. The purchaser is not permitted to pledge or assign the goods as security. In the event of seizure or any other impairment of our rights by third parties, we must be notified immediately and supported in the pursuit of our rights.
d) The purchaser hereby assigns to us by way of security any claims arising from the resale of the reserved goods. The purchaser shall be authorised to collect the claims in the ordinary course of business as long as it duly meets its payment obligations.
e) In the event of a significant deterioration in the purchaser's financial situation — in particular in the event of default in payment, suspension of payments, commencement of composition or insolvency proceedings — the purchaser's authorisation to collect shall expire. In this case, we shall also be entitled to withdraw from the contract and to demand return of the reserved goods. The purchaser shall reimburse us for the costs of collecting and realising the reserved goods. The purchaser shall send us a detailed list of the reserved goods still in its possession, as well as a list of the third-party debtors of the claims assigned to us. Regardless of the above, we shall be entitled at any time to make appropriate investigations at the purchaser's premises to safeguard our rights, in particular to enter storage and retail premises and to inspect all necessary documents and records.
f) We shall release the securities to which we are entitled, at our discretion, if the value of the securities granted to us exceeds our claims by more than 10%.
8. Warranty claims, right of retention and set-off
a) The purchaser's complaints regarding obvious defects may only be notified to us in writing within 14 days of receipt of the goods. Hidden defects must be notified within the statutory warranty period. Insofar as the purchaser is a person within the meaning of Section 24 of the AGBG (German Standard Contract Terms Act) (merchant, legal entity under public law, etc.), hidden defects may only be notified within 14 days of discovery. If the notice of defects is not raised in due time, the goods shall be deemed approved as conforming to the contract.
b) In the event that warranty claims are raised due to material defects, we shall be entitled to the immediate provision of a sample of at least one specimen of the delivered goods, including goods already used, for the purpose of verification.
c) Insofar as the purchaser may raise justified warranty claims under the above provisions, claims for damages, in particular those arising from the use or processing of defective material delivered, shall be excluded. Liability for culpable injury to life, body or health shall remain unaffected. In all cases, only replacement delivery, withdrawal or reduction may be claimed. The assertion of a right of retention and set-off with counterclaims from the supply contract shall be excluded.
d) Warranty claims shall lapse if:
- the purchaser refuses replacement delivery; or
- the purchaser remedies alleged defects itself or has them remedied by third parties without our written consent.
e) Our technical application advice, whether oral or written, is non-binding, including with regard to any third-party intellectual property rights, and does not release our customers from their own obligation to test our products for their suitability for the intended processes and purposes. Should our liability nonetheless be at issue, we shall pay damages only to the same extent as for quality defects. The purchaser is responsible for complying with the laws and official regulations applicable to the use of our products.
9. Liability
a) The seller shall only be liable for damages arising from unlawful acts, culpa in contrahendo, positive breach of contract, impossibility of performance or default if these were caused intentionally or through gross negligence by its authorised representatives or vicarious agents, without prejudice to the provision of Section 831(1) sentence 2 BGB. This shall also apply to claims for damages for indirect and/or consequential damages. The exclusion of liability shall not apply in the case of an initial inability to perform the contract or in the case of a breach of material contractual obligations (cardinal obligations) or in the case of no-fault liability, e.g. under the German Product Liability Act (Produkthaftungsgesetz). The limitation of liability shall not apply insofar as a guarantee pursuant to Section 443 BGB on our part is intended to protect the purchaser against consequential damages arising from defects.
b) Insofar as we have excluded or limited our liability, this shall also apply to the personal liability of our employees, workers, staff or other vicarious agents.
10. Applicable law
All disputes shall be decided in accordance with the substantive law of the Federal Republic of Germany. The application of the Uniform Laws on the International Sale of Movable Property and on the Formation of Contracts for the International Sale of Movable Property is excluded.
11. Place of jurisdiction
The place of jurisdiction shall be the registered office of the company.
As of: 03/2016