Terms and conditions – as of: January 1st, 2013
§ 1 Scope
1. The following sales and delivery conditions apply to all orders executed by us. After the first contract processed under these conditions, they also automatically apply to all further sales and deliveries. Changed conditions apply from the point in time at which they are first received by the buyer.
2. These conditions alone are decisive for the content of the contract. Regulations that deviate from this, in particular the buyer's terms and conditions, are only effective if we confirm this in writing. References by our contractual partners to your terms and conditions of business or purchase are hereby expressly contradicted. In the acceptance of deliveries or partial deliveries, there is always a waiver of your terms and conditions which contradict with our terms and conditions as recognized under our general terms and conditions.
3. These terms of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the purpose of Section 310 Paragraph 1 of the German Civil Code. We only recognize conflicting or deviating terms and conditions of the customer if we expressly agree to them in writing.
These terms of sale also apply to all future transactions with the customer, insofar as legal transactions of a related nature are involved.
§ 2 Offer and contract conclusion
1. Our offers are non-binding. The contract is only concluded with our written order confirmation. If we have made an offer for a limited period of time to the buyer and the buyer accepts the offer in good time, the contract shall come into effect (if there is no other timely order confirmation) upon the buyer's acceptance of the offer.
2. The documents attached to our offer, such as illustrations, drawings, weights and dimensions, are only approximate unless we have expressly designated them as binding in writing.
3. Deviations from our offer and the terms and conditions of sale and delivery on which our offer is based, side agreements and verbal agreements as well as agreements with travellers, representatives and agents require our written confirmation to be effective.
§ 3 Documents provided
We reserve the property rights and copyrights of all documents provided to the customer in connection with the order such as calculations, drawings and alike. These documents may not be made accessible to third parties unless we give the customer our express written consent. If we do not accept the customer's offer within the period of § 2, these documents must be returned to us immediately.
§ 4 Prices and payment
1. Unless otherwise agreed in writing, our prices are ex works, excluding packaging and VAT which is to be included at the applicable rate.
2. Unless otherwise agreed, the purchase price is to be paid immediately after invoicing. The assertion of a higher damage caused by default remains reserved.
3. Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which are made 3 months (or later) after the conclusion of the contract.
4. If the buyer is in arrears with a payment due, default interest of 3% above the respective discount rate of the Deutsche Bundesbank will be charged, subject to the assertion of further rights.
§ 5 Compensation and Rights of Retention
The customer only has the right to compensation if his counterclaims have been legally established or are undisputed. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
1. The beginning of the delivery time specified by us presupposes the timely and proper fulfillment of the customer's obligations. The exception of the unfulfilled contract remains reserved.
2. If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the point in time at which he defaults in acceptance or as a debtor.
3. If it is not possible for us to meet the delivery deadline due to unforeseen circumstances beyond our control, which cannot be averted with the diligence of a prudent businessman, the delivery date will be postponed appropriately by the period that corresponds to the scope of the obstacle, unless the performance is ultimately impossible. Operational disruptions due to fire, water, explosion, strike, lockout, energy disruptions, failure of transport options, shortage of materials, etc. are deemed to be force majeure. It is irrelevant whether these circumstances occur with us or with one of our pre-suppliers or suppliers. If the delivery period is extended, the buyer is entitled to withdraw from the contract after setting a reasonable grace period. In the event of final impossibility or inability for the above reasons, we are released from the obligation to perform.
4. If shipping is delayed at the request of the buyer, he will be billed for the costs incurred by storage for storage in our works for each month, beginning one month after notification of readiness for shipping. However, we are entitled to dispose of the delivery item after setting a reasonable deadline that has passed without result and to supply the buyer within a reasonable extended deadline.
5. Acceptance (pick up): If acceptance is desired, its conditions must be specified upon conclusion of the contract at the latest. Acceptance must always take place at the delivery works immediately after notification of readiness for acceptance. The costs of acceptance shall be borne by the buyer. If the buyer fails to pick up the goods, the goods are deemed to have been delivered in accordance with the conditions.
§ 7 Passing of risk upon dispatch
1. If the goods are sent to the customer at his request, the risk of accidental loss or accidental deterioration of the goods passes to the customer at the latest when they leave the factory/warehouse, when the goods are sent to the customer. This applies regardless of whether the goods are shipped from the place of performance, or to the fact of who bears the freight costs.
2. We are not obliged to insure the goods for shipment. However, we are prepared to insure the goods at buyer’s expense if requested.
§ 8 Retention of title
1. We reserve ownership of the delivered items until all claims from the delivery contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer behaves in breach of contract.
2. As long as ownership has not yet passed to him, the customer is obliged to treat the purchased item with care. In particular, he is obliged to insure them adequately, at the purchase price, at his own expense against theft, fire and water damage. If maintenance and inspection work must be carried out, the customer must carry this out in good time and at his own expense. If ownership has not yet passed, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not able to reimburse us for the court and out-of-court costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
3. The customer is entitled to resell the reserved goods in normal business transactions. The purchaser assigns to us the claims of the customer from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
4. The processing or transformation of the purchased item by the customer is always carried out in our name and on our behalf. In this case, the purchaser's expectant right to the purchased item continues with the transformed item. If the purchased item is processed with other items that do not belong to us, we acquire co-ownership of the new item in relation to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to us and keeps the resulting sole ownership or co-ownership safe for us. To secure our claims against the customer, the customer also assigns to us such claims that accrue to him against a third party because of the connection of the goods subject to retention of title with property; we already accept this assignment.
§ 9 Warranty and notification of defects as well as recourse/manufacturer recourse
1. The customer's warranty rights presuppose that he has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB.
2. Our warranty obligation for contractual claims of any kind is 6 months from the start of use, but no longer than 18 months from delivery.
3. Claims by the buyer made due to defectiveness of the delivery, are excluded if obvious defects are not reported in writing within 6 weeks after arrival of the delivery at the destination accompanied with a precise description of the defect and the defective goods are returned to the seller. The more far-reaching provisions of §§ 377 and 378 HGB on the duty to examine and give notice of defects that apply to merchants remain unaffected. With regard to the timeliness of the notice of defects; a complaint of/to representatives, brokers and agents is not sufficient, and the receipt needs to be directly to us, the seller. Goods that are not reported in a timely and proper manner are deemed to have been approved.
4. The buyer's right to assert claims for defects becomes statute-barred after 6 months from the time we received the timely complaint, unless the statute of limitations has already expired due to the expiry of the warranty periods specified in paragraph 2.
5. We assume no liability for damage caused by improper modifications or repair work carried out by the buyer or third parties without our prior approval.
6. Each delivery or partial delivery is considered an independent transaction with regard to complaints, notices of defects and warranty rights. Defects in a (partial) delivery have no legal consequences for other deliveries.
7. If, despite all due care, the delivered goods show a defect that was already present at the time of the transfer of risk and is subject to timely notification of defects; in this case we will repair the goods at our discretion or deliver replacement goods. We must always be given the opportunity to remedy the defect within a reasonable period of time. Claims for recourse remain unaffected by the above regulation without restriction.
8. If the supplementary performance fails, the buyer can - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
9. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, replacement materials, chemical , electro-chemical or electrical influences, unsuitable building ground or due to special external influences that are not required under the contract. If the customer or third parties carry out improper repair work or changes, there are no claims for defects for these and the resulting consequences.
10. Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded.
11. The customer's right of recourse against us only exists insofar as the customer has not made any agreements with his customer that go beyond the legally mandatory claims for defects.
12. hbTECH is not liable for consequential damage, e.g. due to intent, unless liability is mandatory by law.
§ 10 Export clause
Goods delivered by us may not be exported beyond federal borders. In the event of violations, the buyer is obliged to provide us with information about the whereabouts of the goods and about his sales conditions; he is liable to us for all damages resulting from the infringement.
§ 11 Miscellaneous
1. This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
2. Place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, unless otherwise stated in the order confirmation.
3. All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
4. Should individual provisions of this contract be or become invalid or contain a gap, the remaining provisions shall remain unaffected. The parties oblige themselves to replace any invalid regulation with a legally permissible one, that comes closest to the economic purpose of the invalid regulation, or fills this gap.