heroal - Johann Henkenjohann GmbH & Co. KG
Österwieher Str. 80
33415 Verl (Germany)
Phone +49 5246 507-0
Fax +49 5246 507-222
www.heroal.com
info@heroal.de
1 Validity of Terms and Conditions
1.1 Our deliveries, performances and offers shall be made solely on the basis of these Terms and Conditions. They thus also apply to all future business relations, even in the absence of a subsequent, explicit agreement to that effect. These Terms and Conditions shall be deemed accepted, at the latest upon acceptance of the goods or performance.
1.2 Any counter-confirmation by the customer, referring to the customer's own terms and conditions of business or purchase, is hereby rejected.
1.3 Deviations from these Terms and Conditions shall only be valid if confirmed by us in written form.
2 Offers, Acceptance of Offers and Conclusion of a Contract
2.1 Our offers are subject to confirmation. Performances and calculations shall be made at the prices specified on the day of dispatch or collection of the goods. Significant changes in costs during order processing, for example due to higher raw material prices or wages, shall entitle us to demand an adjustment of prices, or, in the event of disagreement, to revoke the contract.
2.2 If an order from the customer qualifies as a binding offer (§145 BGB, German Civil Code), we can accept it within 2 weeks. This acceptance can be made in written form or by delivery of the goods.
2.3 Except as otherwise provided in the order confirmation, the risk shall pass to the customer upon delivery of the goods or dispatch of the goods “ex works”, which means as soon as the consignment has been handed over to the person responsible for transport or has left our warehouse or our premises for dispatch. If the dispatch of the goods becomes impossible without any fault on our part, the risk shall pass to the customer upon notification of readiness for dispatch.
2.4 Special packaging, such as steel pallets, shall be used for shipment purposes only, and are to be returned in good working condition within 4 weeks, on the occasion of another delivery. Otherwise, they shall be charged at cost. The pallets in use will be shown on each delivery note. Any differences noticed are to be reported immediately.
3 Prices and Terms of Payment
3.1 Unless otherwise arranged, all prices are in euros, plus statutory value-added tax.
3.2 Unless otherwise arranged in written form, payment shall be made strictly net within 30 days of the invoice date. Cash discounts (maximum 2%) shall only be granted for payments made within 10 days of the invoice date. Cash discounts shall only be granted if all due payment obligations, including those from previous deliveries, have been fulfilled and the invoice amount has been credited to our account punctually by the aforementioned due dates.
3.3 If the aforementioned payment deadline has expired, we shall be entitled to charge statutory default interest acc. to §288 BGB (German Civil Code) without the need for a specific notice of default. The assertion of further damage is not excluded.
3.4 The customer shall only be entitled to offsetting rights if their counter-claims have been legally established, are undisputed or have been confirmed by us. Moreover, the customer shall only be entitled to exercise a right of retention insofar as the customer's counter-claim is based on the same contractual relationship.
4 Deliveries
4.1 The agreement of binding dates or deadlines shall require a written form and shall be agreed upon individually. The specified time period can only begin after all technical questions have been clarified. Upon failure to adhere to a binding deadline confirmed in written form, the customer shall be obliged to grant an appropriate extension period in written form. If we also fail to meet the deadline in the extension period, the customer shall be entitled to revoke the contract.
4.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the customer of the estimated new delivery deadline. If the performance remains unavailable within the new delivery period, we shall be entitled to revoke the contract in whole or in part; we shall immediately refund any consideration given by the customer. In particular, a case of non-availability of performance in this sense shall be deemed to be the failure of our suppliers to deliver on time, if a congruent hedging transaction was concluded by us. Our statutory rights to revoke the contract or cancel the contract, as well as the statutory regulations regarding the execution of a contract in the event of an exclusion of the obligation to perform (e.g. performance and/or subsequent fulfilment become(s) impossible or unreasonable) shall remain unaffected. The customer's rights of withdrawal and termination under these General Terms and Conditions shall also remain unaffected.
4.3 The customer shall be entitled to claims of default insofar as we are responsible for the default. In any case, however, the customer shall be required to send a reminder. In the event of a merely slightly negligent breach of obligations by us or by our vicarious agents, our liability shall be limited to the amount of damages typically foreseeable for the type of contract. This shall not affect our liability for damages arising from injury to life, body or health, or from intent or gross negligence. Furthermore, our liability as defined in the German Product Liability Act (ProdHaftG) shall remain unaffected.
5 Retention of Title
5.1 We retain ownership of the delivered goods until all claims against the customer arising from the business relationship, including future claims – also from contracts concluded at the same time or at a later date – have been settled. This shall also apply if individual claims, or all claims, have been included in a revolving account and the account has been balanced or the balance been approved of.
5.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claim has been paid in full. If third parties seize the goods belonging to us, the customer shall notify us immediately in written form, stating the extent of the seizure.
5.3 The customer shall be entitled to resell the goods in the ordinary course of business, provided that the claims arising from the resale are transferred to us as follows: The customer immediately assigns to us all claims and ancillary rights which accrue to the customer against the purchaser or against third parties as a result of the resale, irrespective of whether the goods subject to retention of title are resold without or after processing or fabrication.
The customer shall be entitled to collect this claim even after assignment. Our right to collect these claims ourselves shall remain unaffected. However, we undertake to refrain from collecting such claims, as long as the customer fulfils his payment obligations. Upon request, the customer shall provide us with all information necessary to identify the third party and to assert the assigned claims. If the goods are resold together with other goods which belong to the customer, our claim against the purchaser shall be deemed assigned in the amount of the delivery price agreed between us and our customer.
5.4 For us as manufacturer, processing and transformation of the goods subject to retention of title shall be carried out within the meaning of §950 BGB (German Civil Code), but without any further obligation on our part. The processed goods shall be deemed to be goods subject to retention of title as defined by these Terms and Conditions. If the goods subject to retention of title are processed, or inseparably mixed with other items not belonging to us, we shall acquire title to the new thing in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used at the time of processing or mixing. The co-ownership rights thus created shall be deemed to be goods subject to retention of title as defined by these Terms and Conditions. If our goods are combined and inseparably mixed with other movable items to form a new thing, and if the other thing is to be regarded as the main thing, it is hereby agreed that the customer shall assign co-ownership to us on a pro rata basis, insofar as the main thing belongs to him. In all other respects, the same conditions shall apply to the new thing created by processing, combining and mixing as to the goods subject to retention of title.
5.5 If the customer acts in breach of contract, particularly in the event of default in payment, we shall be entitled to revoke the contract after setting an appropriate payment deadline. We shall then be entitled to take back goods already delivered and the customer shall be obliged to return them. In the event of seizures or other interventions by third parties, the customer shall notify us immediately in written form, by sending a seizure report and a statutory declaration on the identity of the seized thing.
5.6 If the realisable value of securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.
6 Warranty
6.1 The customer is obliged to unpack and inspect the delivered goods immediately upon receipt acc. to §377 HGB (German Commercial Code). Complaints of any kind are to be reported without delay. Hidden defects are to be reported to us immediately upon their discovery. Otherwise, the goods shall be deemed to have been delivered in perfect condition and been approved of.
6.2 We shall cure defects by means of repair or replacement. If the subsequent performance fails or if it is impossible or would entail disproportionate costs, the customer retains the right to a reduction in price and the right of withdrawal. In the event of an only insignificant defect, or an only insignificant breach of duty on our part, any withdrawal shall be excluded.
6.3 We point out that the technical specifications provided by us with respect to the object of performance and the intended use only refer to the approximate character and type of the goods. Permissible tolerances as defined by German Industry Standards (DIN) are no grounds for complaint and do not represent any defects. We shall not be held responsible for defects caused by natural wear and tear, damage caused by improper handling, inadequate storage, or if the defect is due to the goods being used in a special manner which was not indicated to us upon conclusion of the contract.
7 Compensation for Damages/Liability
7.1 Unless provided otherwise below, claims for damages on the part of the customer – irrespective of the legal grounds – are excluded. Therefore, we shall not be held liable for damages not occurring to the delivered item itself; in particular we shall not be held liable for loss of profit or other financial losses of the customer.
7.2 In the event of a merely negligent breach of duty by us or by our vicarious agents, our liability shall be limited to the amount of damages typically foreseeable for the type of contract. We accept liability in accordance with the statutory provisions for damages arising from injury to life, body or health of the customer, and for intent and gross negligence. This shall also apply if the customer claims damages instead of performance due to the absence of a guaranteed quality or characteristic of the thing, or due to fraudulent concealment. Furthermore, our liability as defined by the German Product Liability Act (ProdHaftG) shall remain unaffected.
7.3 Insofar as our liability is excluded or limited, this shall also apply to the liability of our vicarious agents.
8 Defence of Uncertainty
If, after conclusion of the contract, it becomes evident that the customer's insufficient ability to perform jeopardises our claim for payment, we may refuse to render our performance. This right to refuse performance on our part shall not apply if the customer provides payment or gives security for it. We shall be entitled to set a reasonable deadline within which the customer shall provide payment or give a suitable security concurrently with delivery. If this period ends without result, we shall be entitled to revoke the contract.
9 Applicable Law/Jurisdiction/Partial Invalidity
9.1 These Terms and Conditions, as well as all legal relationships between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding CISG (UN Convention on Contracts for the International Sale of Goods).
9.2 If the customer is a merchant as defined in the German Commercial Code (HGB), a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship shall be the Amtsgericht Gütersloh (local court of Gütersloh) and the Landgericht Bielefeld (regional court of Bielefeld), depending on the value of the claim.
9.3 Should any provision of these Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected. If the invalidity is based on a performance-related or time-related stipulation, the statutory provision shall come into force.
