General Terms and Conditions of Sale and Delivery of HUECK Rheinische GmbH
General Terms and Conditions of Sale and Delivery of HUECK Rheinische GmbH1. Area of Application
1.1 These General Terms of Sale and Delivery apply to all contracts for deliveries and services concluded by HUECK Rheinische GmbH (hereinafter referred to as “HUECK”) with customers who are businesspersons as defined in sec. 14 Civil Code (BGB), legal persons under public law or public-law special funds.
1.2 Any deviating terms and conditions of the Customer do not apply, even if HUECK does not expressly object to the same.
2. Conclusion of the Contract
2.1 The offers made by HUECK are without obligation. A contract comes into being only by the written confirmation of order by HUECK or by the immediate performance of the order.
2.2 All agreements made between HUECK and the Customer for the purpose of performing a contract must be documented in writing in this contract or in an amending contract. Any cancellation or modification applies only to the relevant contract concluded.
3. Services by HUECK
3.1 The scope of performance of HUECK is determined by the individual contract.
3.2 The data provided by HUECK about its products, in particular the illustrations, descriptions or drawings contained in printed materials, made in the offer or in the order confirmation, are for the purpose of describing the goods only and are merely approximate, unless otherwise expressly described as binding by HUECK. Unless limits for admissible deviations have been expressly defined in the order confirmation and described as such, the normal deviations in the trade (production tolerances) are admissible.
3.3 HUECK describes the properties of the goods exclusively in its offers, order confirmations and the associated documents without giving any guarantee for these properties. Guarantees must be given in writing and are expressly described as such.
3.4 HUECK reserves all title and copyright to drafts, patterns, drawings, samples and similar documents. They may not be made accessible to third parties without the express written consent of HUECK. All drawings, samples, drafts and other documents enclosed with offers must be returned to HUECK without necessitating a request.
4. Prices
4.1 Supplies and services by HUECK are provided on the basis of the relevant valid price list at the time of confirmation of the order. If increases in the costs of materials, energy or wages occur between the date of confirmation of order and the date of delivery, also in the case of release orders, and if these lead to a change in purchase prices or cost prices of HUECK, HUECK is entitled to adjust the price accordingly. HUECK notifies the Customer of the adjusted price without delay. The Customer has the right to withdraw from the contract with respect to the part of the contract that has not yet been performed within 8 days of receiving this notification, unless HUECK confirms the originally agreed price within 8 days of receiving the declaration of withdrawal.
4.2 All prices always apply ex works plus the relevant applicable statutory rate of value-added tax and exclude packaging and insurance.
5. Payments
5.1 Unless otherwise agreed, all invoices are payable in euros without deduction immediately after receipt of the invoice and delivery.
5.2 In the event of delivery to a territory of the European Community, the Customer must communicate its VAT ID no. and provide HUECK with all documents required to verify the tax-exempt status of any intra-Community delivery (documents, confirmations of receipt, etc.). In the event that HUECK is required to make a back-payment of VAT due to incorrect or incomplete details, HUECK is entitled to further debit this amount to the Customer. If the inaccuracy or incompleteness of the information is due to a fault on the part of the Customer, the Customer is obliged to compensate HUECK for any damages resulting from the same.
5.3 Bills of exchange and cheques are accepted only with the express consent of HUECK and always only on account of payment. The payment is deemed to have been received on the date on which HUECK has the equivalent value at its disposal. The Customer pays discount and bill charges.
5.4 In the event of failure to pay within the period for payment specified in para. 5.1, HUECK is are entitled to claim interest at a rate of 3% above the base interest rate as defined in sec. 247 Civil Code (BGB). This does not affect the right to claim default damages that exceed this amount.
5.5 The Customer may only set off its own claims against those of HUECK if its own claims are undisputed or have final and legally binding effect. Rights of set-off or withholding are available to the Customer only for claims arising from the same contractual relationship that are undisputed or have final and legally binding effect.
5.6 HUECK reserves the right to require advance payment or the furnishing of securities equal to the invoice value of the delivery if, after conclusion of the contract, there is justified and considerable doubt as to the ability to pay and credit-worthiness of the Customer or circumstances that endanger the receivable become known. If no advance payment is made or no securities are furnished within 2 weeks of the demand, HUECK is entitled to withdraw from the contract without having to set any new deadline. This does not affect any further claims.
6. Delivery
6.1 Unless otherwise agreed in writing, delivery is made “ex works”. The Customer pays the costs of shipment. HUECK selects the transport route and means of transport. If HUECK pays the costs of shipment, this does not change the time of passing of the risk. The goods are insured only at the express request and at the expense of the Customer.
6.2 If international terms of trade are used, the Incoterms in the version applicable at the time of the conclusion of the contract apply.
6.3 HUECK is entitled to make part deliveries, if this is reasonable for the Customer.
6.4 After notification of readiness for delivery, the goods must be released for shipment or collected without delay, within 14 days at the latest. If shipment of the goods is delayed for reasons for which the Customer is responsible, the risk passes to the Customer upon notification that the goods are ready for shipment. The Customer bears all costs after the passing of the risk.
6.5 If the Customer does not accept delivery, HUECK may set a subsequent period for acceptance of 8 days and withdraw from the contract after the period has passed without issue and claim damages in lieu of performance.
6.6 Delivery periods and delivery dates must be agreed in writing. Delivery periods begin one week after receipt of the order or, in the event of an express confirmation of order, upon its receipt by the Customer. A delivery period has been complied with if the goods have left the works before it has ended or the Customer has been notified of readiness for shipment.
6.7 Prerequisite for adherence to the delivery period is the performance of all contractual obligations of the Customer, in particular, the timely provision of all base materials to be procured by the Customer and provided to HUECK for processing as well as documents, permits, releases etc. Moreover, periods and dates for delivery are extended by the period in which the Customer is in default with an agreed down-payment or the furnishing of a letter of credit.
6.8 Delivery is conditional upon correct and timely supply by own suppliers. Moreover, the period for delivery is extended by a reasonable length of time in cases of force majeure and other events beyond the control of HUECK and which make delivery considerably more difficult or impossible like, for example, operating faults, transport delays, strikes, lawful lockouts and measures by the authorities.
6.9 If, in the event of an obstacle to performance for the reasons given in paras. 6.7 and 6.8, no end to the impairment is foreseeable, HUECK is entitled to withdraw from the contract.
7. Reservation of Title
7.1. HUECK retains title in the goods delivered (reserved-title goods) until the payment of all accounts receivable arising from the business relations with the Customer. In the event that the Customer has a current account, the reserved title acts as security for HUECK’s claim to the balance of account.
7.2 The Customer is entitled to re-sell the reserved-title goods only in the normal course of business. The Customer already now assigns to HUECK its receivables and rights arising from the resale of the reserved-title goods. HUECK hereby accepts the assignment. Until any revocation on the part of HUECK, the Customer is authorised to collect the receivables assigned in its own name. This does not affect HUECK's right to collect the assigned receivables itself. HUECK may revoke the authority to collect the receivable if circumstances become known that are capable of considerably diminishing the credit-worthiness of the Customer or the Customer is in default with payment. At the request of HUECK, the Customer is obliged to notify the third party of the assignment for the purpose of payment to HUECK and to provide the information and to surrender the documents that HUECK requires to assert its rights against the third party.
7.3 Any processing or treatment of the reserved-title goods always takes place for HUECK as owner of the item. In the event of their being processed, combined or mixed with third-party items by the Customer, HUECK acquires title to the fraction that represents the value of the
reserved-title goods in proportion to the value of the other goods used by the Customer at the time of processing, combining or mixing. If the reserved-title goods are combined or mixed with a main item belonging to the Customer or third parties, the Customer also already now assigns its rights to the new item to HUECK. If the reserved-title goods are combined or mixed with a main item of third parties, the Customer also already now assigns its rights to remuneration against the third parties to HUECK. The Customer assigns to Hueck receivables that accrue to it from a third party as a result of the linking of the reserved-title goods with real estate. HUECK hereby accepts the aforementioned assignments.
7.4 The Customer has no rights of disposal of the reserved-title goods of any kind other than the aforementioned disposals, in particular, no rights to pledge or assign the goods as security.
7.5 The Customer must notify HUECK in writing without delay if the reserved-title goods are attached by third parties or otherwise claimed and notify the third party of the reservation of title.
7.6 The Customer is obliged to treat the reserved-title goods with care; in particular, the Customer is obliged to insure the same adequately for the new value at its own expense against theft, destruction or damage.
7.7 If the realisable value of the aggregate securities held by HUECK exceeds the value of the receivables secured by more than 10%, HUECK is obliged to release securities to this extent at its discretion if the Customer so requests.
7.8 If HUECK – for any reason whatsoever – is entitled to withdraw from the contract and if HUECK exercises this right, HUECK may recover the reserved-title goods, sell the same and set off any proceeds of sale against any claims held against the Customer.
7.9 If the aforementioned agreed reservation of title should not be legally valid under the law of the state in which the reserved-title goods are located or processed, it is hereby agreed that it is substituted by the most approximate legally possible form of security under the law of the relevant state.
8. Defects
8.1 The Customer initially has the statutory duties of examination for defects and submission of any necessary complaints under sec. 377 German Commercial Code (HGB).
8.2 The Customer cannot derive any further rights from material defects that do not affect the value or suitability of the goods for the purpose recognisable to HUECK or which do so merely to a negligible extent.
8.3 If the goods exhibit defects at the time of passing the risk, HUECK is entitled and obliged to undertake subsequent performance. At the discretion of HUECK, subsequent performance can take place by subsequent improvement or replacement delivery provided that this is reasonable for the Customer. The costs of subsequent performance, in particular, labour and material costs, are at the expense of HUECK. This does not affect sec. 439 (3) Civil Code (BGB). HUECK is entitled to make the subsequent performance owed conditional upon the Customer paying the due selling price. However, the Customer is entitled to withhold a part of the selling price that is reasonable in relation to the defect.
8.4 If subsequent performance is unsuccessful, is unreasonable for the Customer, does not take place within a reasonable period of time set by the Customer or is refused, the Customer may, at its own discretion, withdraw from the contract or require a reduction in the selling price that corresponds to the reduction in value resulting from the defects or – within the limits of Article 9 below – claim damages in lieu of performance.
8.5 Sec. 478 German Civil Code (BGB) is not affected by paras. 8.2 to 8.4.
8.6 HUECK has no liability for defects in the event and to the extent that the defects are caused by the Customer’s failure to comply with the operating and maintenance instructions of HUECK, the use of replacement parts or materials that do not conform to the original specifications or interference by unqualified personnel. If a defect is present and if one of the aforementioned situations occurred, the Customer must prove that the defect was not caused by one of the above situations.
9. Other Liability
9.1 Unless otherwise agreed in these terms and conditions, including the following provisions, the liability of HUECK for a breach of contractual and non-contractual duties is determined by the pertinent statutory provisions.
9.2 Regardless of the basis in law, HUECK is liable to compensate for damages only for intent and gross negligence. HUECK is liable in the event of simple negligence only
a) for damages arising from death or personal injury,
b) for damages arising from the breach of a fundamental contractual duty; in this event, however, the liability of HUECK to compensate for damages is limited to the foreseeable damages that would typically have occurred. Deemed to be a fundamental contractual duty for this purpose is an obligation without which proper performance of the contract would be impossible and on the performance of which the other party relies and is entitled to rely.
9.3 All other claims of the Customer based on contract or tort are excluded. For this reason, HUECK is not liable for damage that did not occur to the goods delivered themselves; HUECK is similarly not liable for lost profits or other economic loss of the Customer.
9.4 The limitations of liability arising from the above paras. 9.2 and 9.3 do not apply if HUECK has fraudulently concealed defects or given a guarantee for the condition and quality of the goods. The same applies to claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz). In case of doubt, declarations made by HUECK with regard to the properties of the products represent guarantees only if HUECK has expressly described them as such.
9.5 To the extent to which the liability of HUECK is excluded or limited, this also applies in respect of the personal liability of its employees, representatives and agents.
10. Statute of Limitations
10.1 Subject to sec. 438 No. 2, sec. 479 Civil Code (BGB), the Customer’s right to subsequent performance becomes time-barred one year after delivery of the goods. The right of withdrawal and to a price reduction under the statutory regulations is excluded accordingly.
10.2 The limitation period for claims to damages is one year subject to sec. 438 No. 2, sec. 479 Civil Code (BGB).
10.3 The statutory limitation period continues to apply to claims under the Product Liability Act and to cases of intent and gross negligence.
11. Manufacturing according to Customer’s Instructions
11.1 In the event of manufacturing according to the Customer’s drawing, samples or other instructions of the Customer, HUECK gives no warranty and accepts no liability for the operability of the product or for other defects, if these circumstances are due to the instructions of the Customer.
11.2 The Customer indemnifies HUECK against all claims of third parties, also arising from product liability, for damages resulting from goods manufactured according to instructions from the Customer, unless HUECK is responsible for the damage.
11.3 The Customer warrants to HUECK that the production and delivery of the goods according to its instructions do not infringe any intellectual property rights of third parties. The Customer must compensate HUECK for any damages caused by the assertion of intellectual property rights and indemnify HUECK against all claims of third parties based on such an infringement of intellectual property rights, unless the infringement of intellectual property rights lies solely in the manufacturing process used by HUECK.
11.4 HUECK is entitled to withdraw from the contract if an item sent in by the Customer for processing cannot be processed or only with disproportionately great difficulties. If the difficulty in processing is only discovered in the course of the relevant examination, the Customer must compensate HUECK for the costs incurred for the examination.
12. Place of Performance/Place of Jurisdiction/Governing Law
12.1 Place of performance for both delivery and payment is Viersen.
12.2 Place of jurisdiction for all legal disputes regarding the validity, coming into being and termination of the individual contracts between the Customer and HUECK, as well as for all rights and duties under these contracts, is Viersen. HUECK may also bring a claim at the general place of jurisdiction of the Customer.
12.3 The governing law of the Federal Republic of Germany as it applies to legal relations between domestic parties applies to all legal relations between the Customer and HUECK to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13. Concluding Provisions
13.1. In accordance with sec. 33 Federal Data Protection Act (Bundesdatenschutzgesetz (BDSG)), attention is drawn to the fact that HUECK stores the data received by reason of the business relations with the Customer.
13.2 Should any provision of the contract concluded between the Customer and HUECK or in these terms and conditions of sale and delivery be invalid or should there prove to be an omission, this shall not affect the validity of the remaining provisions. A reasonable provision shall take the place of the invalid provision or to fill the omission which, as far as legally possible, comes closest to what the contractual parties intended or, given the sense and purpose of the contract, would have intended if they had considered the matter.
