General Terms and Conditions of Sale
§ 1 Area of application
(1) These terms of sale apply exclusively to entrepreneurs, corporate bodies under public law and special assets under public law as defined within § 310 Para. 1 of the German Civil Code (BGB).
Conditions made by the buyer conflicting with or divergent from Hebotec GmbH´s sales conditions shall only be accepted if this has been expressly approved by Hebotec GmbH in writing.
(2) These terms and conditions of sale shall also apply to all future business with the buyer to the extent that they are legal transactions of a related nature.
§ 2 Offer and conclusion of contract
If an order is to be considered an offer pursuant to § 145 of the BGB, Hebotec GmbH can accept it within two weeks.
§ 3 Documents provided
Hebotec GmbH retains the sole right of ownership and copyright for all documents provided to the buyer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to a third party and may only be disclosed with the express written consent of Hebotec GmbH.
If Hebotec GmbH does not accept the buyer´s order within the period specified in Para. 2, he must immediately return the documents to Hebotec GmbH.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, Hebotec GmbH´s prices are quoted ex works excluding packing. Packaging costs and, where applicable, customs duties will be billed separately.
(2) Payment of the purchase price is to be made exclusively to the account specified on the proforma invoice. The deduction of any discount is only permissible where a special agreement in writing exists.
(3) Unless otherwise agreed, the purchase price is to be paid in advance. Default interest shall be payable on overdue amounts at the rate of 8% above the base lending rate p.a. (http://www.bundesbank.de/presse/_zinssaetze.php). Hebotec GmbH reserves the right to claim higher damages arising from the default in payment.
(4) If no fixed price agreement has been made, Hebotec GmbH reserves the right to make reasonable price adjustments due to changes in wage costs, material costs and distribution costs for deliveries occurring 3 months or later thereafter.
§ 5 Compensation and right of retention
The buyer is only entitled to the right of compensation if the counterclaim is legally binding and uncontested. The buyer is authorised to practice the right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery period
(1) The starting date of the delivery period stated by Hebotec GmbH assumes the punctual and proper fulfillment of the buyer´s obligations. Hebotec GmbH reserves the right of objection that the contract has not been fulfilled.
(2) If the buyer fails to accept the goods or does not meet his obligation to co-operate, Hebotec GmbH shall be entitled to ask for compensation of any resulting damage including any possible extra expenses. Hebotec GmbH reserves the right to make any further demands. Insofar as such aforesaid conditions apply, the risk of accidental loss or incidental deterioration of the purchased goods passes over to the buyer at the point of time in which the delay of acceptance occurs.
(3) In the case of delayed delivery not resulting from intent or gross negligence on Hebotec GmbH´s part, the liability to pay a lump sum compensation for delay is accepted, amounting to 0.5% of the delivery value for each full week of delay but not exceeding 5% of the delivery value.
(4) Any further legal claims and rights of the buyer due to delayed delivery remain unaffected.
§ 7 Transfer of risks responsibility after dispatch of goods
If the goods are sent to the buyer upon his wish, the risk of accidental destruction or deterioration of the goods shall pass to the buyer upon dispatch to goods, at the latest upon leaving Hebotec GmbH´s works/ warehouse. This shall be applicable irrespective of whether the shipment is initiated from the place of performance and which party bears the freight costs.
§ 8 Reservation of proprietary rights
(1) All goods delivered shall remain Hebotec GmbH´s property until all claims arising from the delivery contract have been paid in full. This also applies to all future deliveries, even if this is not consistently and expressly referred to. In case the buyer infringes against the contract, Hebotec GmbH is entitled to demand the return of the merchandise.
(2) The buyer is obligated to handle the object of purchase with care until ownership has transferred to the buyer. If any maintenance or inspection work is required, the buyer shall perform such work in due time at his own expense. As long as ownership has not transferred, the buyer must notify Hebotec GmbH immediately in writing if the delivered item is impounded or subject to other interventions by third parties. To the extent that the third party is not able to reimburse Hebotec GmbH for the judicial and extra-judicial costs for an action as per § 771 ZPO, the buyer shall be liable for such expenses.
(3) The buyer has the right to resell the conditional sale goods in the normal course of business.
The buyer agrees to pay the part of the final invoice for the resale of conditional sale goods as entitled.
This surrender of a claim applies irrespective of whether the purchased goods have been resold without or after further processing. The buyer retains the authorisation to collect the charges even after the transfer of rights. Hebotec´s authorisation to collect the debt themselves remains unchanged.
However, Hebotec GmbH will not exercise collection rights, as long as the buyer satisfies his payment obligations arising from the collected amounts, he does not default on payments and in particular has not opened insolvency proceedings and made arrangements for payments to be discontinued.
(4) Adapting and processing or modification of the purchased goods by the buyer may only be made on behalf of and by order from Hebotec GmbH.
In this case, the entitlement of the buyer on the transformed goods shall continue. In the event that goods supplied by Hebotec GmbH are combined with other non- Hebotec GmbH goods, Hebotec GmbH shall acquire the co-ownership of the resulting goods corresponding in the ratio of the objective value of the Hebotec GmbH goods at the time of processing the modifications. This also shall apply in the case of combining goods together. Insofar, as these changes occur in such way that the newly formed item of the buyer can be regarded as the principal part, it shall be agreed that the buyer transfers the right of joint ownership pro rata to Hebotec GmbH so that the resultant sole right of ownership or joint ownership is retained by Hebotec GmbH. As assurance for Hebotec GmbH´s claims against the buyer, he also relinquishes to Hebotec GmbH any such demands from third parties that may arise as a result of the conditional sale goods being installed in real property; Hebotec GmbH assumes this condition with immediate effect.
(5) Hebotec GmbH obligates itself to release its rights to the buyer, as far as the outstanding value of the securities exceeds the claims by more than 20%.
§ 9 Warranty and notice of defect as well as recourse/ manufacturer regress
(1) The buyer´s warranty rights are subject to § 377 HBG (German Commercial Code) and assume his fulfillment of inspection and regress notification as stipulated therein.
(2) Warranty claims become time-barred 12 months after delivery of the goods by Hebotec GmbH to the buyer. The above provisions do not apply provided that the law according to § 438, Para. 1 No. 2 of the BGB (Buildings and Items for Buildings), § 479 Para. 1 BGB (Right of Recourse) and § 634a Para. 1 BGB (Defects and Deficiencies) mandates longer deadlines. Agreement from Hebotec GmbH has to be obtained prior to returning goods.
(3) In case that, despite all due care, the delivered goods are defect as already existing at the time of transfer of risk, Hebotec GmbH will choose whether to repair them or deliver replacement goods subsequent to receiving notification of defects. Hebotec GmbH must always be given the opportunity to initiate the actions within an appropriate period. The rights of recourse of the above provision remain unaffected.
(4) If the subsequent performance fails, the buyer – irrespective of any claims for damages – may withdraw from the contract or reduce the total order costs.
(5) Claims for defects where only minimal variation from the agreed quality exists, cannot be accepted, in the case of minimal reduction of serviceability, where there is natural wear and tear as a result of material quality or due to contact with other work pieces or in the case of damage occurring after the transfer of risk – normally resulting during the hand-over or delivery of the item – due to improper use or negligent treatment of Hebotec GmbH´s products, faulty installation, excessive operational demands, unsuitable operating equipment or by virtue of exceptional external influences, which are not presupposed within the contract terms. There is also no justification for damage claims for incorrect maintenance or modifications carried out by the buyer or a third party, nor for any further damage resulting from them.
(6) Claims on the part of the buyer for costs incurred in connection with necessary supplementary performance, in particular transport, materials, labour costs are excluded insofar as these supplementary costs are increased due to transport of Hebotec GmbH goods to facilities other than the buyer´s central facility, except where this is commensurate with use at the final destination.
(7) The buyer´s right of recourse against Hebotec GmbH is limited to cases where the buyer has not concluded an agreement with its customer exceeding the scope of the statutory warranty provisions.
§ 10 Miscellaneous
(1) This contract and the entire legal relationship between the parties is subject to the law of the Federal Republic of Germany, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive court of jurisdiction for all disputes arising from this contract is the court competent for Hebotec GmbH´s address of record, except when otherwise agreed upon in the order confirmation.
(3) All agreements made between the parties with the purpose of fulfilling this contract are stipulated in this contract in written form.
(4) Should individual clauses be or become invalid or be incomplete, all other clauses remain unaffected. The parties obligate themselves to reach a legally allowed agreement in place of the invalid clause, which corresponds as closely as possible to the commercially intended purpose of the invalid clause or fills the requirement.
