§ 1 Scope:
- The following terms of sale and delivery apply between HETA Verfahrenstechnik GmbH,
Gottlieb-Daimler-Str. 7, 35423 Lich, Germany, and their customers.
- They apply exclusively and to all goods and services. We do not recognise contrary or differing terms of sale and delivery save we have agreed to them explicitly in writing. Our terms of sale and delivery also apply if we know the customer has contrary and differing terms of sale and delivery and perform delivery to the customer without reservation without having rejected his terms of contract.
- All agreements reached between us and our customers for the purposes of execution of a contract are stipulated in writing in this contract.
- Our terms of sale and delivery only apply to companies within the sense of § 14 of the German Civil Code.
§ 2 Definitions:
- Goods and services in the sense of these terms are all deliveries effected by us to customers on the basis of a sales contract or according to § 651, par. 1, clause 1 of the German Civil Code (delivery of work and materials) and work and other services (other services on the basis of a contract for work and services) rendered by us including services on the basis of contracts that contain contractual purchase, work or service elements.
- Warranty claims in the sense of these terms are all claims by our customers due to deficient goods and services rendered by us (§§ 433 ff., 433 ff. of the German Civil Code).
- Customers in the sense of these terms are all companies that express an interest in our goods and services or who avail themselves of same by agreement.
§ 3 Conclusion of contract:
A contract for execution of goods and services (object of contract) ordered by the customer comes into being as soon as we accept the offer of contract (order) given by the customer orally or in writing. The customer is bound to a written offer of contract given by him for 10 days from receipt by us. Our acceptance is effected at the latest with transmission of our written acknowledgement of the order or through execution of the goods and services ordered. The customer must reject our written acknowledgement of the order without delay if he does not agree to its contents.
§ 4 Prices and payments, securities:
- If not agreed otherwise in writing, our prices are quoted for a delivery ex works; the place of perfor-mance is not changed by this. The prices do not contain costs for shipping and packaging. Costs for additional services wanted by our customer (e.g. installation) and insurance are charged additionally.
- If performance or partial performance is effected by agreement more than four months after con-clusion of contract and if the price agreed was not explicitly designated as firm price, the list prices valid on the day of performance shall be charged.
- If we are bound to advance performance, we are en- titled, even after conclusion of contract, to make our goods and services conditional upon our customer furnishing reasonable security for his consideration should it become discernable that our right to consideration is jeopardised by a lack of capacity on the part of our customer.
- In the absence of any special agreements payment is to be transferred to our account free of charge to us within 10 days of receipt of our invoice less 2% discount or 30 days after receipt of our invoice without deductions. Bills of exchange shall only be accepted by special written agreement; they and cheques are only accepted in lieu of payment. Their collection fees and discount charges shall be charged to the customer.
- If payments by installment have been agreed or if a respite is granted for the purchase price, the complete balance due shall - irrespective of the maturity of any bills of exchange given to us - become due for payment immediately if the customer concerned falls into arrears of 14 days with the payment of an installment in whole or in part, he ceases payments or a petition for opening of insolvency proceedings against his assets is filed.
- The customer may only offset our payment claims against undisputed or titled claims. Such a customer may only assert a right of retention if his counter claim rests on the same contractual relationship.
§ 5 Delivery periods, shipping:
- The performance dates and performance periods given by us are only approximate save they have explicitly been designated as “fixed”.
- Performance periods commence three work days after sending of the written acknowledgement of the order, without such acknowledgement on conclusion of contract. Further, prerequisite for the commencement of the performance periods is that the documents that are to be supplied by the customer are available to us and we have received any prepayment and/or any payment guarantee agreed.
- The customer may send us a written demand for performance within a reasonable period, which must be at least 10 work days, at the earliest four weeks after passing of a performance period not designated as “fixed“ or a performance date not designated as “fixed“. We fall into default on expiry of the period.
- A delivery date or delivery period is deemed as met if before its expiry the goods to be delivered have in the case of a transaction involving carriage of the goods been handed over to a forwarder, in the case of a transaction involving collection from our premises the customer has been notified in writing that the goods are ready for collection and for the rest if the goods have been received by the customer.
- If the goods that are to be delivered are shipped at the request of the customer, we are entitled, but without explicit instructions from the customer not obligated, to insure the goods against transport risks at the customer‘s expense.
- In case of default we shall be liable according to the statutory regulations insofar as the delay in delivery rests on wilful or grossly negligent breach of contract on our part. A fault by our own repre-sentatives or a vicarious agent employed by us is to be attributed to us. If the delay in delivery rests on grossly negligent breach of contract on our part, our liability for compensation for damages is limited to the foreseeable, typical direct average loss.
- We shall also be liable according to statutory regulations if the delay in delivery caused by us rests on culpable breach of a significant contractual obligation; in this case, however, our liability for compensation for damages is limited to the foreseeable, typical direct average loss.
- We shall be liable according to statutory regulations if the underlying contract is a fixed transaction in the sense of § 286, par. 2, no. 4 of the German Civil Code or of § 376 of the German Commercial Code. We shall also be liable according to statutory regulations if as a consequence of a delay in delivery for which we are responsible the buyer is entitled to claim that his interest in further performance of the contract has lapsed.
§ 6 Partial deliveries, call orders:
- If not all goods are available in stock, we are entitled to effect partial deliveries.
- If the customer has ordered goods that are to be delivered to him by agreement in partial deliveries to be determined by him (call orders), every part called shall be deemed an independent delivery in the sense of these terms.
- In the case of call orders the customer is obligated to call the complete goods from us within the agreed call period. Volumes not called for in this period shall be deemed as called by 31 December of the current calendar year at the latest and shall be delivered accordingly.
§ 7 Quantity differences:
- Our customer is obligated to accept the goods that are to be delivered by us or the services that are to be rendered by us within 14 days of receipt of the notice that same are ready or finished. Acceptance may not be refused for minor deficiencies.
- Manufacturing-related excess or short deliveries are admissible within a tolerance of 5 % of the total order volume; the total price changes accordingly.
§ 8 Retention of title:
- We reserve title to the purchased goods until all receivables from the business relationship with the client have been settled. This shall also apply if such receivables have been included by us and/or the customer in a current account and the balance has been drawn and accepted.
- The customer must inform us immediately of execution measures against the goods subject to retention of title or receivables assigned in advance and hand over the documents necessary for intervention and provide the information necessary for this.
- The customer is obligated to treat the goods subject to retention of title with care and to insure same against fire and water damage and theft at his own expense. In the case of risk to our (co-)ownership and in the case of a cessation of payments by the customer same is obligated to take all measures and acts of cooperation necessary to establish our ownership. If the customer is in default of payment or has signifycantly breached his obligations from the agreement on retention of title, we are further entitled to take over the goods belonging to us in our direct possession at the customer‘s expense to secure our claims or to take suitable measures to mark and secure our title. We may avail ourselves of the services of third parties to execute the activities according to this paragraph.
- If we have withdrawn from the contract in terms of § 323 of the German Civil Code, we are entitled to sell the goods subject to retention of title as best possible on the open market. The customer is entitled to demand at his own expense consultation of an appraiser to determine the value of the goods subject to retention of title; We are obligated to offset our claims against the customer by the amount of the value of the goods subject to retention of title as established by this appraiser. The appraiser is to be named in case of doubt by the chamber of commerce and industry responsible for us.
- The customer is entitled to process the goods subject to retention of title, combine or mix same with other goods or market same in the ordinary course of business. The customer must inform third parties explicitly of our retention of title. It is not permitted to pledge the goods subject to retention of title or to use same as security. Ordinary course of business in this sense does not exist if the assignment of the customer‘s claim against the third party, who receives title through the above measure, is ruled out.
- The customer already assigns today as security all his claims against third parties (third-party debtors) acquired through the sale, processing or mixing of the goods subject to retention of title. We accept the assignment. The customer, however, is entitled to collect these receivables as long as he fulfills his obligations to us. We may demand at any time that the assigned claims are to be collected through a special account and transferred to us immediately after receipt. The customer is obligated at all times to furnish us on demand with the details on the assigned claims (especially the amount involved as well as the name and address of the third-party debtor) necessary to collect same. If the goods subject to retention of title are sold together with other goods, irrespective of whether without or after processing, combination, mixing or blending, the advance assignment agreed above only applies with regards to a preferential partial amount equalling the invoiced value of the goods subject to retention of title that were sold together with the other goods.
- Any processing of the goods subject to retention of title is done by the customer on our behalf without this resulting in any obligations for us. In the case of processing, combining, mixing or blending of the goods subject to retention of title with other goods not belonging to us we are entitled to co-ownership of the resultant new article in the ratio of the value of the goods subject to retention of title to the value of the other goods at the time of processing, combining, mixing or blending. If the customer acquires sole title to the new article, we and the customer are agreed that the customer shall grant us co-ownership to the new article in the ratio of the value of the processed, combined, mixed or blended goods subject to retention of title to the value of the other goods and shall safekeep same for us free of charge.
- If the value of the securities due to us according to these terms of business exceed our receivables from the customer by more than 10%, we are obligated on demand by the customer to release securities at our discretion of proportionate value.
§ 9 Properties:
- It is deemed agreed with the customer that our respective product description or that of the respec-tive manufacturer applies regarding the properties of the goods. Public statements, claims or adver-tising by the respective manufacturer shall not constitute additional contractual information on the properties of the goods. This also applies to such claims, statements or advertising messages by us.
- Warranties are only deemed as given if this is stated in text form, if we use the term “warranty“ in agreements on properties or it is absolutely clear from the context that such a warranty is to be given.
- Our details in catalogues, brochures, etc. are approximate values customary in the industry save we explicitly state that they are binding.
- The applicable standards including their tolerances apply in the case of information on properties given by us.
- We are only obligated to deliver goods free of grease or a rust film if this was explicitly agreed in writing.
- If subcontracted work is carried out or materials, semi-finished products or tool appliances or other parts are furnished by the customer, we are not obligated to inspect the parts furnished to us. The obligation to inspect suitability for the contractual purpose lies with the customer. The customer accepts the usual reject rate as agreed. In any event a reject rate of up to 5% of the total quantity of material is admissible and contractual. Should the deficiency of a part or material delivered to us mean that a part manufactured by us is deficient or unusable, the customer must nevertheless pay the agreed fee for the work. Should we or a third party incur losses due to the unsuitability of such a part or material furnished to us, they shall be borne by the customer, who shall further indemnify us from any claims for compensation for damage by a third party.
§10 Liability for defects:
- Claims for defects by the customer presuppose that the customer has fulfilled his inspection and complaint obligations according to § 377 of the German Commercial Code properly and correctly. Immediate notifycation of defects must be made in writing.
- If the purchased goods are defective, we are entitled to fulfil the customer‘s claim to subsequent performance at our discretion through elimination of the defects or through delivery of a new article free of defects. If subsequent performance fails, the customer is entitled at his discretion to demand cancellation of the contract or a reduction in the price. The defect must be eliminated within a reasonable period of time. If the defect is not eliminated within a reasonable period of time, the customer must on written demand to this effect declare within a period of two weeks whether he wishes to withdraw from the contract or continues to insist on fulfillment of the contract. If punctual fulfillment is not demanded, the right to fulfillment ceases insofar as we have notified the customer of this consequence in writing on demanding the declaration.
- The limitation period for claims for defects is 12 months, commencing from the passing of risk. Delivery shall be deemed to have taken place irrespective of whether the customer is in default of acceptance or the risk has passed over to him according to § 447 of the German Civil Code (transaction involving carriage of the goods). In the case of subsequent performance the limitation period shall not be extended, but shall be based in these cases on par. 3; it commences on delivery of the original article or equivalent fulfillment according to par.1.
- The limitation period in the case of delivery recourse according to §§ 478, 479 of the German Civil Code shall remain unaffected by this.
§11 Compensation for damages:
- We shall be liable according to statutory regulations insofar as the customer claims compensation for damages resting on intent or gross negligence including intent or gross negligence by our own representatives or vicarious agents.
- If we cannot be accused of wilful breach of contract, our liability for compensation for damages is limited to the foreseeable, typical direct average loss.
- We shall also be liable according to statutory regulations if we culpably breach a significant contractual obligation; in this case our liability for compensation for damages is limited to the foreseeable, typical direct average loss.
- If the customer has a right to compensation of the damage instead of performance, our liability shall also be limited to compensation of the foreseeable, typical direct average loss.
- Our liability for culpable harm to life, body or health remains unaffected by this; this also applies to mandatory liability according to product liability law.
- If not arranged above otherwise, our liability is ruled out.
§12 Force majeure:
Force majeure, industrial disputes, official actions, failure of deliveries from our suppliers and other unforeseeable, unavoidable and serious events release us and our customer (contractual partner) from performance obligations for the duration of the disruption and in the scope of its impact. This also applies if these events occur at a point in time in which the contractual partner concerned is in default save he has caused the default wilfully or gross negligently. The contractual partners are obligated within reasonable bounds to provide the necessary information immediately and to adapt their obligations to the changed situation in good faith.
§13 Export and export control regulations:
The customer undertakes before planned export to observe all applicable German and foreign regulations and in particular to obtain the necessary export licence according to the respective applicable foreign trade legislation of the Federal Republic of Germany, the European Union and/or the United States of America. The customer is responsible for observance of the named export control regulations, also by his customers, and indemnifies us insofar from liability.
§14 Place of performance / Place of jurisdiction:
- Place of performance / Place of jurisdiction.
- The place of jurisdiction for both parties is Gießen, Germany, save law does not prescribe otherwise.
- The respective contracts shall be governed and construed exclusively according to German law. This also applies if the buyer is situated outside Germany.
§15 Written form, severability clause:
- Any change to this agreement must be made in writing.
- The parties to the contract undertake to replace, if necessary, any clause that is or becomes ineffective or impracticable with a clause that comes as close as possible to the economic intent of the provision that is or has become ineffective or impracticable.