General Terms and Conditions of Sale, Delivery and Payment of Hieber & Maier GmbH
- Scope of application
l1.1 These General Terms and Conditions of Sale, Delivery and Payment (‘GTC’) apply to all our business relationships with our customers (‘Buyer’). The General Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
1.2 Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall also apply if the Buyer refers to its General Terms and Conditions of Business in the context of the order and we have not expressly objected to the General Terms and Conditions of Business.
1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (‘Goods’). Unless otherwise agreed, the General Terms and Conditions of Sale in the version valid at the time of the Buyer’s order or in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us as the Seller having to refer to them again on a case-by-case basis.
1.4 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) and information in our order confirmation shall take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
1.5 Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. notifications of defects, setting of deadlines, cancellation or reduction) must be made in writing, i.e. in written and text form (e.g. letter, e-mail).
1.6 If references are made to the validity of statutory provisions, it should be noted that these are only of clarifying significance. The statutory provisions shall apply – even if no corresponding clarification has been made – to the extent that they are not amended or excluded by the General Terms and Conditions of Sale.
- Offer and conclusion of contract
2.1 Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards) and other product descriptions or documents (including in electronic form). We reserve the property rights and copyrights to all documents provided to the Buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the Buyer our express written consent to do so.
2.2 The order of the goods by the Buyer is a non-binding contractual offer in accordance with Section 145 of the German Civil Code (BGB). In the event that nothing to the contrary results from the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
2.3 The acceptance of the contract offer on the part of the Buyer can be declared either in writing (e.g. by an order confirmation) or by delivery of the goods to the Buyer. In the event that we as the seller do not accept the buyer’s offer within the period specified in section 2.2, any documents sent to the buyer must be returned to us immediately. - Prices and terms of payment
3.1 Unless otherwise agreed in writing in individual cases, our prices agreed at the time of conclusion of the contract shall apply, plus the statutory sales tax. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
3.2 In the case of a sale by despatch, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
3.3 Payment of the purchase price must be made exclusively to the accounts specified by us. The deduction of a discount is only permitted if a special written agreement has been made.
3.4 Unless otherwise agreed, the purchase price shall be due and payable within fourteen days of invoicing and delivery or acceptance of the goods. However, we are authorised at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
3.5 The Buyer shall be in default if the above payment period expires. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate pursuant to Section 288 (2) of the German Civil Code (BGB) in the amount of nine percentage points above the respective base interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest in accordance with Section 353 of the German Commercial Code (HGB) remains unaffected.
3.6 If it is foreseeable after conclusion of the contract that our claim to payment of the purchase price is jeopardised due to the Buyer’s inability to pay (e.g. due to an application to open insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and, in the case of contracts in which the manufacture of non-fungible items (custom-made products) is owed, to withdraw from the contract immediately. The statutory provisions on the dispensability of setting a deadline shall remain unaffected in this respect.
- Rights of retention
4.1 The Buyer shall only be entitled to rights of set-off or retention in the event that his claim has been legally established or is undisputed and his counterclaim is based on the same contractual relationship. In the event that defects occur within the scope of delivery, the Buyer’s counter-rights, in particular in accordance with clause 11.7 sentence 2 of these General Terms and Conditions of Sale, shall remain unaffected.
- Confidentiality
5.1 The Buyer undertakes to treat all non-public commercial and technical details of which it becomes aware through the business relationship as business secrets.
5.2 Delivered goods (including rolling dies and tools), drawings, models, templates, samples and similar items may not be handed over or otherwise made accessible to unauthorised third parties. The reproduction of such items is only permitted within the scope of operational requirements and copyright provisions.
5.3 This obligation shall not apply to documents and knowledge that are generally known or were already known to the Buyer upon receipt of the goods. - Drawings and descriptions
6.1 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are labelled ‘confidential’.
- Samples and production equipment
7.1 Unless otherwise agreed, the manufacturing costs for samples and production equipment (dies, tools, moulds, constructions, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to production equipment that has to be replaced due to wear and tear.
7.2 If the Buyer suspends or terminates the co-operation during the production time of the samples or means of production without us having given him a justified reason to do so, all production costs incurred up to that point shall be borne by the Buyer. - Delivery period and delay in delivery
8.1 Delivery dates shall be agreed individually or stated by us upon acceptance of the order. Specified delivery dates are non-binding unless they have been expressly confirmed by us in writing as a ‘binding delivery date’ or agreed as binding.
8.2 In the event that we are unable to meet contractually agreed delivery deadlines for reasons for which we are not responsible, we shall inform the Buyer of this circumstance without delay and at the same time inform the Buyer of the expected or new delivery deadline. If a delayed delivery cannot be made due to non-availability of the service even within the newly announced delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer (in the form of the purchase price payment). The non-availability of the service is given, for example, if our supplier has not delivered to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (e.g. due to force majeure) or if we are not obliged to procure in individual cases.
8.3 Whether we as the seller are in default of delivery shall be determined in accordance with the statutory provisions. However, the prerequisite for a delay in delivery on our part as seller is a reminder from the buyer. In the event of a delay in delivery, the buyer may claim lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no damage or only less damage than the above lump sum.
8.4 The Buyer’s rights pursuant to Section 12 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
8.5 Partial deliveries are permitted to a reasonable extent. They shall be invoiced separately.
8.6 Production-related short deliveries are permissible within a tolerance of ten (10) per cent of the respective order quantity. The invoice value shall change accordingly. - Delivery, transfer of risk, acceptance, default of acceptance
9.1 Unless otherwise agreed, delivery shall be ex works (EXW, in accordance with the currently valid Incoterms). The factory is also the place of fulfilment for the delivery and the place for any subsequent fulfilment. In the event that the buyer wishes the goods to be sent to a different destination (sale to destination), the buyer shall bear the costs of the shipment. In the event that nothing has been contractually agreed, we may determine the type of shipment (packaging, shipping route, transport company) ourselves.
9.2 The risk of accidental loss and accidental deterioration shall pass to the Buyer when the goods are handed over to the Buyer. In the case of a sale involving the carriage of goods, the risk of accidental loss of the goods, accidental deterioration of the goods and the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent or carrier. In the event that acceptance of the goods is contractually agreed, this shall be decisive for the transfer of risk. Further statutory provisions of the law on contracts for work and labour remain unaffected. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance of the goods.
9.3 In the event that the Buyer is in default of acceptance or our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation from the Buyer for the damage incurred, including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation amounting to 0.5% of the net value of the goods per week or part thereof, beginning with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch, but not exceeding a total of 5% of the net value of the goods not accepted. Proof of higher damages and statutory claims on our part (in particular reimbursement of additional expenses, reasonable compensation, cancellation or withdrawal) shall remain unaffected; however, the aforementioned lump-sum compensation shall be offset against further monetary claims. The customer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum.
- Retention of title
10.1 We reserve title to the delivered goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
10.2 The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security until the secured claims have been paid in full. The buyer must inform us immediately in writing in the event that an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the Buyer shall be liable for the loss incurred by us.
10.3 In the event of a breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include a declaration of cancellation; rather, we are entitled to merely demand the return of the goods and reserve the right to cancel the contract. In the event that the buyer does not pay the purchase price due, we must have set the buyer a reasonable deadline for payment without success before asserting these rights. This shall only apply if such a deadline is not dispensable under the statutory provisions.
10.4 The buyer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. - Claims for defects of the buyer
11.1 The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below.
11.2 Agreements which we have made with purchasers regarding the quality and intended use of the goods regularly form the basis of our liability for defects within the scope of the warranty. In the event that no quality has been agreed, it shall be assessed in accordance with the provisions of Section 434 (3) of the German Civil Code (BGB) whether a defect exists.
11.3 We shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of at the time of conclusion of the contract in accordance with Section 442 of the German Civil Code (BGB).
11.4 Claims for defects on the part of the Buyer shall only exist if the Buyer has complied with its statutory inspection and notification obligations (Section 377 and Section 381 of the German Commercial Code (HGB)). The Buyer must inspect the delivered goods for function and dimensional accuracy (overall dimensions, heights and widths, lateral correctness, function and quality) in good time before the start of production. Samples are to be produced in advance with the rolling dies, which are to be checked for their quality requirements accordingly. We must be notified immediately in writing if a defect is discovered during delivery, inspection or at a later date. Obvious defects must be reported in writing within 5 working days of delivery and non-recognisable defects within the same period of time from discovery of the defects. In the event that the Buyer fails to fulfil or does not fulfil its obligation to properly inspect and check the tool or sample part and/or report defects, we shall not be liable for the defect not reported or not reported on time or not reported properly in accordance with the statutory provisions.
11.5 For the processing of a notice of defect and the determination of a defect, an exact description of the defect or its effects, if possible a rolled part and, if necessary, access to the tool and, if applicable, the intended machine are required.
11.6 No warranty shall be assumed for defects or damage based on the causes listed below:
– omitted or faulty co-operation by the Buyer
– incorrect self-testing of the installation data by the buyer
– improper or negligent use and handling by the purchaser, in particular non-compliance with the usual ambient conditions, such as wire quality, machine condition, lubrication, lifting speed, feed, knowledge of the setter, etc.
– faulty installation or incorrect commissioning by the buyer, in particular failure to carry out the required inspection
– lack of trial operation
– natural wear and tear
– use of unsuitable equipment or materials or harmful influences of the material to be processed
11.7 If the delivered goods are defective, we as the seller shall be entitled to choose whether we provide subsequent fulfilment by remedying the defect (rectification) or by delivering a defect-free item (subsequent delivery). In the event that the type of subsequent fulfilment chosen by us is unreasonable for the buyer in the individual case, the buyer may refuse it. However, we reserve the right to refuse subsequent fulfilment under the statutory conditions.In addition, we are entitled to make the subsequent fulfilment to be provided by us dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
11.8 The Buyer shall grant us the necessary time and opportunity for the subsequent fulfilment to be provided. In particular, the Buyer shall hand over to us the item for which he has asserted a defect for inspection purposes. In the event that we carry out a subsequent delivery of a defect-free item, the buyer must return the defective item to us in accordance with the statutory provisions. However, the Buyer shall not be entitled to a claim for return.
11.9 Unless we are contractually obliged to do so, subsequent fulfilment shall not include the removal, dismantling or disassembly of the defective item or the installation, attachment or assembly of a defect-free item.
11.10 We shall reimburse the expenses necessary for inspection purposes and for subsequent performance (transport, labour and material costs and, if applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms and Conditions of Sale in the event of a defect. However, we may demand reimbursement from the Buyer for costs incurred due to an unjustified request to remedy a defect in the event that the Buyer knew or could have recognised that there was in fact no defect.
11.11 The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the Buyer for subsequent fulfilment has expired unsuccessfully or is dispensable in accordance with the statutory provisions. In the event of a minor defect, however, the Buyer shall have no right of cancellation.
11.12 Claims for damages or claims for reimbursement of futile expenses of the Buyer (Section 284 of German Civil Code (BGB)) shall only exist in accordance with clause 10, even in the event of a defect. Claims of the Buyer for reimbursement of expenses in accordance with Section 445a paragraph 1 of German Civil Code (BGB) are excluded. - Limitation period
12.1 The general limitation period for claims resulting from material defects or defects of title is one year from delivery, in deviation from Section 438 paragraph 1 no. 3 of the German Civil Code (BGB). In the event that acceptance has been contractually agreed, the limitation period shall commence upon acceptance.
12.2 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period pursuant to §§ 195, 199 BGB would lead to a shorter limitation period in individual cases. The Buyer’s claims for damages and claims under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods. - Other liability
13.1 As the seller, we accept no liability for damage caused by products manufactured using the goods supplied by us. In particular, we are not liable for the quality, safety or suitability of the end products manufactured with the goods supplied by us. The responsibility for testing and ensuring the quality of the end products lies exclusively with the buyer.
13.2 Unless otherwise provided for in these General Terms and Conditions of Sale, including the following provisions, we as the Seller shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
13.3 Within the scope of fault-based liability, we shall be liable for damages, irrespective of the legal grounds, only in the event of wilful intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner relies and may also rely). In this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.
13.4 The limitations of liability arising in accordance with clause 13.2 shall also apply to third parties and in the event of breaches of duty by persons whose fault we are responsible for in accordance with statutory provisions. Insofar as a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the limitations of liability shall not apply. This also applies to claims of the buyer under the Product Liability Act.
13.5 The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not result from a defect in the event that we as the Seller are responsible for the breach of duty. The Buyer’s right of cancellation (in particular pursuant to Section 650 and Section 648 of the German Civil Code (BGB)) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
13.6 If the Buyer was at fault in the occurrence of the damage, the obligation to pay compensation and the extent of the compensation to be paid shall depend on the circumstances, in particular on the extent to which the damage was caused primarily by one or the other contracting party (contributory negligence). - Force majeure
14.1 Force majeure, labour disputes, unrest, war and armed conflicts, terrorist attacks, epidemics and pandemics, official measures and other unforeseeable, unavoidable and serious events shall release us from our performance obligations for the duration of the disruption and to the extent of its effect. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith. This shall also apply if these events occur at a time when we are in default.
- Choice of law and place of jurisdiction
15.1 These General Terms and Conditions of Sale and the contractual relationship between us as the Seller and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
15.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our registered office in 74626 Bretzfeld-Schwabbach, Germany, shall be the exclusive, and also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).
15.3 We shall also be entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these General Terms and Conditions of Sale or an overriding individual agreement or at the Buyer’s general place of jurisdiction. This shall not affect overriding statutory provisions (exclusive places of jurisdiction).