General Terms and Conditions of Sale and Delivery of
Henle Baumaschinentechnik GmbH (Current as of February 2014)
§1 General Information – Scope of Application
We provide our services exclusively under the conditions of these General Terms and Conditions of Sale and Delivery, regardless of the type of contract to which the transaction is to be attributed. These General Terms and Conditions of Sale and Delivery shall also apply to future transactions with the customer, even if not expressly referred to.
We reject any general terms and conditions (GTC) of the customer. Such GTC from the customer shall not become a part of a contract even if the customer has ordered or confirmed making reference to the customer’s own general terms and conditions, and we do not object to this.
§ 2 Offers – Binding Effect
(1) Our offers are subject to change and to intermediate sale.
(2) If the order is to be qualified as an offer under § 145 of the German Civil Code (BGB), we can accept the offer within 2 weeks. In the case of a written offer, such time limit begins with the date of issue stated in the offer.
§ 3 Delivery Conditions
(1) Weight, dimensions and technical data, including the resistance to wear of our products, in any drawings, brochures, illustrations or any other documentation are approximate and non-binding and are neither assured characteristics nor guarantees, unless otherwise expressly agreed upon in writing.
(2) The object of the contract is the product sold that complies with the specific individual contract in which the characteristics, properties and intended use are stipulated. Other properties/characteristics or intended uses are relevant only if they have been expressly confirmed by us.
(3) We provide our delivery and services “ex Works”, pursuant to Incoterms Revision 000, from our warehouse without packaging; packaging shall be invoiced separately. We shall ship the goods in a manner we deem appropriate, at the cost and risk of the customer. If the customer so desires, we shall take out an appropriate transport insurance policy that covers the delivery; the costs incurred in this respect are borne by the customer.
§ 4 Prices and Terms of Payment
(1) Value-added tax (sales tax) is not included in our prices; it is stated separately in the legal amount on the day of invoicing.
(2) Payments are due within 30 days of delivery of the goods without deduction. The statutory regulations apply in regards to the consequences of a delay in payment. We may, however, also demand payment in installments against delivery. The deduction of a discount is permitted only if this has been expressly agreed upon in writing.
(3) The customer may offset or exercise a right of retention only if and to the extent that the customer’s counterclaims are undisputed or legally established.
(4) Bills of exchange and checks will be accepted as conditional payment. The customer bears the costs of the bill of exchange or check, including the discount charges.
(5) Should we perform in advance, the requirements of § 321 of the German Civil Code (BGB) shall apply if a bill of exchange or check from the customer has not been accepted, unless the customer is not responsible for this. If this occurs, all other payments are then immediately due, even if we have deferred them or exchanged them.
§ 5 Delivery Time
(1) Unless expressly agreed upon otherwise, the delivery times stated by us are always non-binding.
(2) If we are in delay of delivery and the customer experiences more than minor damages, our liability amounts to 1% of the delivery value of the delayed service for each whole week of delay, to a maximum of 10%. Further claims for damages are excluded, unless the damage is caused by gross negligence of one of our legal representatives or senior executives.
(3) The above provisions do not apply to a commercial fixed transaction. However, we are liable only for foreseeable damages that are typical of this type of contract.
(4) Delays in delivery due to force majeure or to unforeseen circumstances not attributable to us, such as labor disputes and their consequences, are not our fault. An agreed-upon delivery period is extended by the duration of the hindrance plus an appropriate start-up period. Claims for damages are excluded in this case.
(5) We may partially perform.
§ 6 Warranty for Material Defects
(1) Claims for defects from the customer presuppose that the customer has properly complied with the customer’s inspection and complaint obligations due pursuant to § 377 of the German Commercial Code (HGB). In regards to wear parts, their resistance to wear does not correspond to the contractually agreed condition only if the wear incurred substantially exceeds the expected extent, taking into account the type of application of the customer. In the case of disputes, the customer must give evidence of the operating conditions to which the delivered wear part was exposed.
(2) If our performance is deficient, our warranty for material defects is initially limited to supplementary performance, which we shall perform at our own discretion by removing the defect or by delivering a defect-free product.
(3) If we are unwilling or unable to replenish the goods, or there is a delay beyond reasonable time limits, or if we fail in any other way for reasons for which we are responsible, the customer may, at the customer’s own discretion, withdraw from the contract or demand a reduction.
(4) All further claims of the customer due to the defects, in particular to damages, are excluded. In no event are we liable for damages that did not occur to the delivered object itself, such as lost profits or other assets.
(5) If the customer is entitled to make claims against us pursuant to § 478 of the German Civil Code (BGB), any claim for damages shall be excluded.
(6) When purchasing used items, any claims due to material defects put forth by the customer are excluded.
(7) Deviating from the statutory regulation, the customer’s warranty claims are subject to a limitation period of 12 months from the date of the transfer of risk.
(8) We are liable to the extent of the statutory provisions, provided the customer asserts claims for damages based on intent or gross negligence, including intent and gross negligence of our representatives or vicarious agents. Unless deliberate breach of contract is involved, the liability for damages is limited to foreseeable, typical damages.
(9) Unless otherwise stated above, liability is excluded.
(10) If the complaint turns out to be unjustified, the customer shall reimburse the services we have rendered on the basis of a complaint according to our list prices.
§ 7 Warranty
(1) The assumption of a warranty by us presupposes that it has been expressly agreed upon in writing as such. In doing so, we must have stated unequivocally that we wanted to assume the liability for the guaranteed circumstance under all circumstances, even if we are not at fault. No such warranty is contained in the description of the service.
(2) If, in individual cases, we have assumed a warranty, the latter is, in the absence of other individual and written agreements, limited to six months, beginning with the delivery of the purchased item.
(3) Our liability under a warranty is limited to the replacement of the foreseeable damage that is typical for such a contract.
§ 8 Liability for Other Reasons / Exemption
(1) Further liability for compensation for damages as provided for in § 6 is excluded, without consideration of the legal nature of the claim asserted. This applies in particular to claims for damages arising from a breach of duty when concluding the contract, due to other breaches of duty or due to delictual claims for compensation for damage to property pursuant to Art. § 823 of the German Civil Code (BGB).
(2) This shall not apply if a material obligation, which arises from the nature of the contract and which would be jeopardized by the limitation of liability of the object of the contract, has been infringed upon. Our obligation to provide compensation shall, however, be limited to foreseeable damages typical for such a contract, unless we are responsible due to intent or gross negligence.
(3) The exclusion or limitation of liability also affects the persons who have acted for us, in particular for representatives of bodies, employees, workers, contractors, representatives and other vicarious agents.
§ 9 Retention of Title
(1) We retain ownership of the delivered goods until complete fulfillment of all our claims to payment – also from other shops – vis-a-vis the customer.
(2) In the case of a breach of contract by the customer, especially in the event of a delay in payment, we may repossess the delivered goods. The repossession of the purchase item by us constitutes a withdrawal from the contract. We are then authorized to negotiate freely. The proceeds from the sale are to be credited to the customer’s liabilities less appropriate costs of realization and a profit margin which we would have earned if sold from our own portfolio or in trade.
(3) The customer shall handle the delivered item with care as long as the retention of title exists, and sufficiently insure it up to the new value, in particular against fire, water and theft damages. If maintenance and inspection work is required, the customer must carry it out in good time and at the customer’s own expense. The customer hereby assigns the insurance claims to us.
(4) In case of attachments or other forms of intervention by third parties against our property, the customer shall make reference to the reservation of title and notify us immediately in writing so that we can bring an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the court and extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for any loss incurred by us.
(5) The customer is allowed to resell the delivered item in any regular manner typical of its business operations. The customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT), regardless of whether the customer was authorized or unauthorized, which can also come from a confirmation of balances from a current account agreed with the customer’s consumer; the customer, however, has a revocable right to collect such receivables. At our request, the customer shall disclose the assigned claims and their debtors and shall provide all information necessary for collection, hand over the related documents, and notify the third party of the assignment in writing.
(6) The processing, modification or combining of the purchased item by the customer will always be carried out on our behalf. If the goods delivered are processed, modified or combined with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the delivered item (final invoice amount including VAT) to the value of the remaining items. The same applies equally to the newly created goods and to the goods delivered under retention of title; the transfer of the receivables from the resale, however, is limited to the proportion determined in Sentence 2.
(7) We may, at our discretion, release securities at the customer’s request insofar as the securities value exceeds our claims by more than 30%.
§ 10 Choice of Law, Place of Jurisdiction, Place of Performance
(1) The legal designation between the parties is exclusively governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UNCITRAL / CISG).
(2) The invalidity or nullity of a clause does not affect the remaining contractual content.
(3) Place of performance and – if the customer is a merchant – the court of jurisdiction for all claims arising out of or in connection with these General Terms and Conditions of Sale and Delivery is Rammingen, Germany. We may also, however, file suit against the customer in the general court of jurisdiction of the customer.
Rammingen, February 2014