General Terms and Conditions
of HS-Technik GmbH, D-79588 Efringen-Kirchen, Im Martelacker 12
– Version January 2007 –
These terms and conditions apply to all contracts, deliveries and other services, including consulting services. The purchase conditions of the buyer are hereby revoked.
2. Offer and conclusion
2.1 Offers are always non-binding; Orders are considered accepted if they are confirmed by us in writing or executed immediately upon receipt of order. The delivery note, or invoice is considered the confirmation of the order. In the case of call orders, the entire quantity specified must be accepted within the agreed deadline. To the extent the we deliver on the basis of manufacturer price lists, our prices, unless expressly agreed otherwise, always refer to the current manufacturer price list. Commitments of special prices refer only to the respective order and have no precedent for subsequent contracts.
2.2 If our sales staff make verbal side agreements, or give assurances that go beyond the written contract, these always require written confirmation. Obvious errors, typographical, printing and arithmetic errors are not binding for us. The documents belonging to the offer such as illustrations, drawings, calculations, weights and measurements are, unless otherwise agreed, only approximate guides. Such statements, in particular also regarding the performance and usefulness of the delivered products as well as DIN standards, are only valid as a guarantee of characteristics within the meaning of § 459 (2) German Civil Code, if we expressly declare this in writing. Verbal declarations by persons who have unlimited authority to represent us, or unlimited authority to represent us to the outside world, remain unaffected by the above provisions.
2.3 The technical advice is given to the best of our knowledge and belief; however, liability can only be derived from this insofar as this advice is part of our contractual agreement.
2.4 If we provide samples to the buyer, these are considered test samples and not as samples within the meaning of § 494 German Civil Code.
2.5 If, after the conclusion of the contract we become aware of facts, in particular default of payment with respect to previous deliveries, which according to our best judgement, lead to a significant deterioration of assets, we shall be entitled to demand payment in advance or appropriate securities and, in the event of refusal, to withdraw from the contract, whereby partial deliveries already made immediately become due for payment.
3. Delivery deadlines and delay
3.1 If there is no written commitment from management expressly designated as binding, a delivery period shall only be deemed as agreed on an approximate basis. It begins on the day of clarification of all technical and other details of the order as well as the provision of any required documents. It is extended by the period in which the buyer is in default with his contractual obligations – within an ongoing business relationship also from other contracts.
3.2 The expiry of certain delivery deadlines and dates shall not release the buyer, who wishes to withdraw from the contract or claim damages, from setting a reasonable grace period – but at least 14 days – for provision of the service and the declaration that he will refuse the service after the deadline. This does not apply if we have expressly designated a deadline or date for performance as binding.
3.3 Partial deliveries are permitted to a reasonable extent.
3.4 Correct and timely self-delivery is reserved in any case.
3.5 The delivery period is extended – even within a delay – appropriately in the case of force majeure and all unforeseen obstacles that have occurred after the conclusion of the contract, that we are not responsible for (in particular, breakdowns, strikes, lockouts or disruptions of the roads), to the extent that such obstacles verifiably have a significant impact on our performance or delivery. This also applies if these circumstances occur with our suppliers and their subcontractors. We will inform the buyer of the beginning and end of such obstacles we inform as soon as possible. The buyer may ask us for a statement as to whether we wish to withdraw or deliver within a reasonable period of time. If we do not immediately make a declaration, the buyer may withdraw.
3.6 We shall in no case be liable for delayed or missing deliveries (impossibility) due to the fault of our suppliers. However, we undertake to assign any claims for compensation against the subcontractor to the buyer.
3.7 The right of the buyer to withdraw after fruitless expiry of a set reasonable grace period remains unaffected.
4. Shipping, transfer of risk, packaging
4.1 The choice of shipping route and means of shipment is left to us. The same applies to the packaging, which shall be executed according to transport and safety considerations as well as environmental concerns.
4.2 If the shipment is delayed at the request, or due to fault on the part of the buyer, the goods are stored at the expense and risk of the buyer. In this case, notification of readiness for shipment is the same as the shipping. Upon storage of the goods the goods invoice becomes due for payment immediately.
4.3 In addition, with the transfer of the goods to a freight forwarder or carrier, however, no later than with the departure from the delivery warehouse, the risk transfers to the buyer, even if the delivery is carried out with its own truck.
4.4 Insofar as we agree with the buyer that in return for the granting a bonus he waives his right of return, he is obliged to hand over the used packaging to a recognised waste management company, which shall ensure proper disposal in accordance with the provisions of the Packaging Ordinance.
4.5 Packaging which, according to §4 (3) of the Packaging Ordinance, is excluded from the scope of application of this ordinance (“Contaminated Packaging”), is exempted from the granting of a bonus. They will also not be taken back.
5. Prices and payment
5.1 Unless otherwise stated in the order confirmation, the stated prices are net in Euro plus statutory VAT always “ex works”, excluding packaging; this will be charged separately.
5.2 If a significant change in our costs occurs after conclusion of the contract, e.g. due to a price change by our suppliers, we are entitled to make an appropriate adjustment of our prices for deliveries that are to be made later than 3 months after the conclusion of the contract. If the price increases by more than 10% in such a case, the customer is entitled to withdraw.
5.3 Our term of payment from the date of the invoice is 30 days. This only applies in the event that the buyer is not in arrears with the payment of previous deliveries.
5.4 Payments in a so-called check/bill procedure always require a special agreement. Credits for bills of exchange and checks will be less expenses with the value date the day on which we have the equivalent value.
5.5 Our claims shall become due immediately, irrespective of the term of any received and credited bills of exchange, if the terms of payment are not met or if facts become known which indicate a significant deterioration of the buyer’s financial situation. In the latter case, we are entitled to make further deliveries dependent on advance payment or the provision of corresponding securities.
5.6 If the buyer falls into payment arrears, or fails to honour a bill of exchange upon the due date, we are entitled to take back the goods,; if necessary to enter the buyer’s business and take the goods away. We may also prohibit the further sale and removal of the delivered goods. A take-back is not a withdrawal from the contract if the consumer credit law does not apply.
5.7 In the cases of paragraphs 5.5. and 5.6. we can revoke direct debit authorization (paragraph 6.4.) and require advance payment for still outstanding deliveries. The buyer can, however, avert these legal consequences, as well as those specified in paragraph 5.6 by providing security in the amount of our claim for payment.
5.8 Default interest is charged at 5% p. above the base rate of the European Central Bank, plus VAT. They are to be set higher or lower if we prove a charge with a higher interest rate or the buyer can prove a lower one.
5.9 Offsetting against our claims is only permitted with unchallenged or legally determined counter claims. A right of retention from previous or other transactions of the current business relationship cannot be asserted. Unilateral deductions for the disposal of packaging materials are not permitted.
6. Title retention
6.1 We reserve the ownership of the goods until full payment of the purchase price. In the case of goods which the buyer acquires from us in the course of his professional or commercial activities, we retain ownership until all our claims arising from the business relationship have been settled, including claims arising in the future – also from simultaneous or later concluded contracts. This also applies if individual, or all, claims by us have been incorporated in a current invoice and the balance has been drawn and recognized. If, in connection with the payment of the purchase price by the buyer, a change of liability is justified by us, retention of title does not expire before the discharge of a bill of exchange by the buyer.
6.2 The buyer must inform us immediately about any access by third parties to the goods subject to the retention of title and the assigned claims. He may sell the reserved goods only in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us according to the following Nos. 6.3. to 6.4. He is not entitled to other dispositions of the reserved goods.
6.3 The claims of the buyer from the resale of the reserved goods shall already be assigned to us now. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not delivered by us, the claim from the resale is assigned to us in proportion of the invoice value of our goods to the other goods sold.
6.4 The buyer is entitled to collect the claims from the resale of the reserved goods, unless we revoke the direct debit authorisation in the cases specified in section 5.7. At our request, he is obliged to inform his customers immediately of the assignment to us – if we do not do so ourselves – and to give us the information and documents necessary for collection. The buyer is in no case entitled to further assignment of the claims. An assignment by means of genuine factoring is only permitted to the buyer on the condition that he notifies us of this through notification of the factoring bank and the accounts maintained there by the buyer, and the factoring proceeds exceed the value of our secured claim. With the crediting of the factoring proceeds our claim becomes due immediately.
6.5 We undertake to release securities to the extent that the value of the collateral exceeds the claims to be secured by more than 20%, insofar as these have not yet been settled.
7. Notice of defects and warranty
7.1 All obvious and / or recognised defects, shortages or incorrect deliveries must be reported in writing within 7 days at the latest, but in any case prior to use or processing. Further obligations of the merchant in accordance with Sections 337, 378 German Commercial Code remain unaffected.
7.2 In case of legitimate complaints, we will repair of defective goods, replacement delivery or credit shall be made at our discretion.
7.3 In order to remedy the defect, the Buyer must grant us the time and opportunity required in its reasonable discretion, in particular to make the rejected object or samples of it available; otherwise the warranty is void. If there are any doubts about whether the notification of defects is justified we may first obtain an expert opinion from our preliminary supplier.
7.4 If we allow a reasonable grace period to elapse without remedying the defect or providing replacement, or if the repair or replacement is impossible or refused by us, then the Buyer has the right, at its discretion, to rescission of the contract (cancellation), or lowering of the purchase price (reduction).
7.5 There is no warranty for damages that have arisen for the following reasons:
– unsuitable or improper use
– Non-compliance with operating instructions, recommendations or user instructions from the manufacturer
– faulty assembly, commissioning, maintenance, modification or repair not performed by us
– unsuitable equipment
– incorrect storage or transport, or other improper handling by the buyer or third parties
– natural wear and tear.
7.6 If the goods are missing a guaranteed characteristic at the time of transfer of risk, the buyer is entitled to a right of withdrawal. In the case of consequential damages, he may demand compensation for non-performance only insofar as the warranty pursued the purpose of protecting him against the consequential damage caused by the defect.
8. General limitation of liability
8.1 Our liability is based exclusively on the agreements made in the preceding sections. Claims for damages of the buyer arising from faults at the time of the conclusion of the contract, breach of contractual secondary obligations and unauthorized liability are excluded, unless they are based on gross negligence by us or one of our vicarious agents. In case of breach of essential contractual obligations, we are also liable for slight negligence; In this case, however, our liability is limited to the replacement of foreseeable and typical damages. These claims expire 1 year after receipt of the goods or acceptance of the service by the buyer.
8.2 Claims under the Product Liability Act remain unaffected by the above provisions.
9. Returns / Exchange
9.1 A return or exchange is only possible after prior written agreement, otherwise acceptance will be refused. Open packaging and goods that are no longer marketable are generally excluded from return or exchange.
9.2 The amount of possible compensation for still usable goods depends on their findings and is determined by us at our reasonable discretion.
10.1 Troubleshooting can often be tedious; Repair deadlines are therefore only approximate, unless we have made a commitment expressly declared as binding, for a specific date.
10.2 If the submission of a cost estimate is desired before carrying out repairs, this must be stated explicitly. The cost of the estimate must be compensated, even if the repair is not commissioned.
10.3 Whether repairs are carried out in our own workshop, or that of a third-party is at our discretion.
10.4 The provisions of Sections 7 and 8 apply mutatis mutandis to our warranty.
11. Data protection
The buyer is hereby informed that we use the personal data obtained in the context of the business relationship in accordance with the provisions of the GDPR.
12. Place of performance, jurisdiction, applicable law
12.1 Place of fulfilment and exclusive place of jurisdiction for deliveries and payments (including checks and Actions on bills of exchange) as well as all resulting disputes is, insofar as the buyer is a merchant, legal entity subject to public law or a special fund under public law, the place of jurisdiction is the court of competent jurisdiction for our company headquarters. However, we are entitled to bring an action against the buyer at the court of his business location.
12.2 The terms of contract are governed exclusively by the law applicable in Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
12.3 If individual provisions of this contract relationship are invalid, this shall not affect the validity of the remaining provisions of the contract. The Parties are obliged to replace the invalid provision with a valid one that correspond as closely as possible to the economic purpose of this contract.