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General conditions of sale and delivery
1. General/scope of application
Our general conditions of sale and delivery only apply to business transactions with entrepreneurs, legal entities under public law and fund assets under public law. We only recognise conflicting or different terms of business insofar as we explicitly consent to their validity in writing or in text form. The delivery of goods and services and the acceptance of payments do not signify consent, even if the delivery or service is made or accepted in the knowledge of conflicting or different terms of business. These conditions of delivery also apply to all future contracts with the purchaser in respect of transactions of a related nature.
2. Conclusion of contracts and changes to contracts
2.1 Our offers and quotes are non-binding. They represent an invitation to the purchaser to submit a binding offer to conclude a contract (order) and are therefore not binding on us. The order will be deemed accepted when the order is confirmed by us in text form at least. A tacit acceptance is excluded. Verbal agreements or agreements made by telephone must be confirmed by us in text form to be effective. The same applies to additions, amendments or additional agreements.
3. Delivery, transfer of risk
3.1 Unless otherwise agreed, a delivery deadline will be deemed to have been met if the goods have left our factory or were handed to the purchaser by the appointed time, or the purchaser was notified of readiness for shipment by the appointed time. Delivery ex works from Lampertheim will be deemed to be agreed, regardless of any other agreement. This also applies to partial deliveries.
3.2 The date of our order confirmation is definitive for calculating the delivery deadlines. However, delivery periods only start to run once the purchaser has correctly and promptly met its obligations, in particular to provide the documents and information it has to source, as well as any necessary approvals and documents, and made the agreed down payment to us or provided us with the agreed letter of credit.
3.3 If following conclusion of the contract the purchaser wishes to make changes to the agreement, this will lead to an extension of the delivery period or postponement of the delivery date. Depending on the order situation, the extension period may be longer than that which would be required purely to implement the desired changes.
3.4 We will be entitled to make partial deliveries or to make partial provision of services insofar as this is reasonable for the purchaser.
3.5 In relation to shipment, unless otherwise agreed, the risk of accidental destruction or accidental deterioration passes to the purchaser at the time of shipment of the goods, including where partial deliveries are made. The same applies if the purchaser defaults on acceptance or debt obligations. Where acceptance is required, this is the definitive point at which risk is transferred. At the customer's request, we will insure the consignment against theft, breakage, transport damage, fire and water damage and other insurable risks at the customer's expense.
3.6 If the purchaser defaults on acceptance, we may demand a flat-rate compensation of 0.20% of the net price per calendar day, but a total of no more than 5% of the net price of the goods. We reserve the right to provide evidence that a higher loss has been incurred. The purchaser reserves the right to provide evidence that no or only minimal loss has been occurred. Otherwise, statutory provisions apply.
3.7 The purchaser obtains a non-exclusive right of use to software forming part of the scope of delivery, including the documentation, on the designated delivery item. Use of the software on more than one system is prohibited. The purchaser may only reproduce, revise, translate software, or convert it from object code to source code, within the contractually agreed or assumed scope. The purchaser undertakes not to remove manufacturer's specifications – particularly copyright notices – or to modify them without prior explicit consent. All other rights to the software and documentation, including copies, remain with us or with the software supplier. It is not permissible to issue sub-licences.
4. Force majeure
Measures as part of industrial disputes, force majeure, malfunctions arising through the fault of no party, unrest, official actions or other unavoidable events will result in an extension of the delivery period, insofar as such obstacles will have a significant impact on the completion or delivery of the ordered goods. If the interruption lasts more than 3 months, each contracting party will be entitled to withdraw from the unfulfilled part of the contract in writing. In the event of a withdrawal from any part of the contract, we must be reimbursed for the costs of work already completed, including materials. Upon request, each contracting party must state at the end of the 3-month deferral period whether or not it wishes to continue with the contract.
5. Prices and payment
5.1 Unless otherwise agreed, our prices are prices ex works including packaging but with duty unpaid and excluding freight and statutory VAT.
5.2 Unless otherwise agreed, payments must be made in euros within 10 days of the invoice date for contract work and within 30 days for deliveries, due net and without any charges to us. Defaults on payment will be subject to statutory provisions.
5.3 The purchaser only has set-off rights and repayment rights insofar as its counterclaims are not contested or are confirmed to be legally admissible.
6.1 Quality and legal defects the delivery are subject to statutory requirements, unless otherwise specified below. Warranty rights of the purchaser presuppose that the latter will honour its obligations under § 377 of the German Commercial Code to inspect goods and report defects in the correct manner.
6.2 If the delivered goods have a defect at the time of the transfer of risk, we will correct the goods or provide replacement goods at our discretion, subject to the defect being reported within the prescribed deadline. The purchaser shall give us the requisite time to perform all the improvements and replacement deliveries that we reasonably deem necessary, otherwise we will be exempt from liability for defects. If supplementary performance fails, the purchaser may withdraw from the contract within the scope of statutory provisions or reduce remuneration. Claims for compensation and reimbursement of expenses are based on section 8. However, reimbursement of expenses is excluded if expenses are increased because the goods were subsequently taken to a place other than the branch office of the purchaser, unless taking them to this other place was in accordance with the intended use.
6.3 We specifically do not accept any liability in the following cases: inappropriate or incorrect use, faulty installation or commissioning by the purchaser or a third party, natural wear and tear, incorrect or negligent handling, incorrect maintenance, inappropriate equipment, deficient construction work, use of an inappropriate foundation, or chemical, electrochemical or electrical factors.
6.4 We accept no liability for the issue of any requisite approvals under public law or for compliance with immission regulations, subject to any agreements specifying otherwise.
6.5 Warranty claims of the purchaser will lapse 12 months after completion of delivery. This does not affect the longer periods of limitation under §§ 438 paragraph 1 no. 2, 478 paragraph 1 and 634a of the German Civil Code.
7. Rights of withdrawal and termination
7.1 In addition to the statutory rights of withdrawal, we will also be entitled to withdraw from the contract if the purchaser becomes insolvent, it stops making payments, an application is made to open insolvency proceedings on its assets or the opening of insolvency proceedings on its assets is declined for lack of assets, or a significant deterioration in the purchaser's financial circumstances has occurred or is liable to occur and there is a resulting risk that an obligation towards us will not be met.
7.2 If a continuous obligation exists, the alternatives cited in section 7.1 provide grounds for extraordinary termination the contract without notice.
7.3 If we withdraw from or terminate the contract, the purchaser shall reimburse us for any losses incurred as a result of this, unless the purchaser is not responsible for the rights of withdrawal or termination occurring.
8. Liability for losses
8.1 We accept unlimited liability for claims for compensation and reimbursement for wasted expenses in the context of §§ 284 insofar as the cause of loss is based on wilful intent or gross negligence. In the case of breaches of material obligations based on minor negligence, our liability will be limited to foreseeable loss typical for the contract. We will not accept liability for breaches of non-material contractual obligations based on minor negligence.
8.2 The restriction of liability defined in section 8.1 does not apply to loss of life, physical injury or damage to health, to a defect following assumption of a guarantee for the quality of the product, or to fraudulently concealed defects. This does not affect liability based on the German Product Liability Act or liability based on other compulsory liability.
8.3 Our liability will not exceed statutory requirements in any circumstances. Where our liability is limited or excluded, this also applies to the personal liability of our officers, workers, employees, representatives and vicarious agents.
9. Retention of title
9.1 We reserve ownership of our goods until all claims from the business relationship, including any refinancing or return bills, have been paid. We are entitled to take goods back if the purchaser behaves in a manner contrary to the contract.
9.2 The purchaser is obliged to treat the goods with due care while it still does not have ownership of the goods. In particular, it is obliged to insure them against theft and fire and water damage at its own expense. If maintenance and inspection work is required, the purchaser must complete this work at its own expense.
9.3 Processing the goods does not give the purchaser any ownership of the fully or partially manufactured items; any processing is done exclusively on our behalf. In processing with goods in third-party ownership, we acquire co-ownership of the new items. The extent of co-ownership is based on the proportion of the invoice value of the product delivered by us in relation to the invoice value of the remaining product. The same applies where products are blended. However, if the retention of title lapses, it is herewith agreed that co-ownership or ownership of the items will transfer to us at the point of processing. The purchaser remains the non-paid custodian of these items. To safeguard our claims against the purchaser, the purchaser shall assign to us its requirements against a third party arising as a result of combining the goods with a plot of land, which assignment we herewith accept.
9.4 The purchaser is entitled to resell the goods subject to retention of title in the context of a normal business transaction. The purchaser herewith assigns its claim from the resale of the goods subject to retention of title to us, including in cases where the goods have been processed. Besides our goods subject to retention of title, the processed product only contains items that either belonged to the purchaser or were delivered only subject to a simple retention of title, the purchaser will assign the same purchase price claim to us. Otherwise, we will be entitled to a fraction of the claim according to the proportion of the invoice value of our goods subject to retention of title in relation to the invoice value of the other processed items.
9.5 We undertake to release collaterals insofar as the value of these collaterals exceeds the claims to be secured by more than 20%.
10. Documents and secrecy
All commercial or technical information disclosed by us, regardless of the form in which it was issued and regardless of the storage medium, e.g. calculations, drawings and models, must, while and insofar as it is not demonstrably publicly known, or where it has been provided by us for the purposes of the resale of goods by the purchaser, be kept secret from third parties. Such information must not be reproduced, be used for commercial purposes, or be passed to third parties. At our request, such information, including any copies made, and any items handed over must be returned to us immediately and in full, or be destroyed, at our discretion. We reserve ownership and all rights to such information (including copyrights and the right to apply for industrial property rights). Insofar as this information has been disclosed by third parties, this reservation of rights also applies in favour of these third parties.
11. Export control
11.1 Deliverables and performance are subject to the condition that there are no obstacles in the way of fulfilment based on national or international export control regulations, in particular embargoes or other sanctions. The purchaser undertakes to provide any such information or documents as are required for export or shipment. Delays caused by export checks or approval procedures will invalidate deadlines and delivery periods. If the necessary approvals are not issued, or if the deliverables and performance cannot be approved, the contract will be deemed not to have been concluded. We are entitled to terminate the contract without notice if termination of the contract is required by us in order to comply with national or international regulations. Enforcement by the purchaser of loss due to termination of the contract is excluded in this case.
11.2 It was incumbent on the purchaser to comply with the respective applicable regulations under national and international export control law at the time of forwarding the goods delivered by us or the services rendered by us to a third party.
12. General provisions
12.1 If one of the clauses of these provisions and any other agreements made becomes ineffective, this shall not affect the validity of the remaining provisions. The contracting parties are obliged to replace the ineffective clause with a clause that most closely reflects the commercial impact of the ineffective clause.
12.2 Contractual relations are subject exclusively to German law to the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).
12.3 The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships on which these purchasing conditions are based is Lampertheim. We are also entitled to bring an action against the purchaser at the court responsible for the location of its headquarters or branch office or at the court responsible for the place of fulfilment at our discretion.
HEESS GmbH & Co KG, general conditions of sale and delivery, dated: April 2019