HOESCH Bausysteme GmbH General Terms and Conditions of Trading and Supply
(Status November 2012)
A. General terms and conditions
I. Conclusion of contract
1. Our goods and services are supplied solely on the basis of the following conditions. Any procurement conditions of the purchaser are hereby rejected.
2. The goods that are the subject of the contract are limited to those from our own production, unless otherwise agreed.
3. Our offers are without obligation.
4. All offers by the purchaser will only count as accepted if expressly declared to be so by us. A lack of response to such an offer does not represent acceptance. The same also applies to commercial letters of confirmation transmitted in electronic form, unless the electronic form of transmission has been agreed by both parties and transmission is directed to the address expressly determined for receiving such declarations.
5. Any declarations on our part in respect of conclusion, amendment or termination of agreements must be in writing; however, no qualified electronic signature is required unless otherwise agreed with the purchaser.
6. Public statements, drawings and representations, dimensions, weights and descriptions and other technical data represent approximate values. For us, these are non-binding unless expressly confirmed in writing. Even during the period of delivery, we reserve the right to make technical changes.
II. Terms and conditions of payment
1. The purchase price is due by the 15th day of the month following delivery ex works or ex warehouse at the latest.
2. If it has been agreed that the goods shall be released for shipment by our customer within a certain period following our advice of readiness for shipment (call-off order), we reserve the right to invoice the goods from the time of readiness for shipment; in this case payment is due 30 days after the date of the invoice. The rights arising from Section A II.5 are reserved.
3. Payment is to be made without deduction of discount so that we can dispose of the amount on the due date. The purchaser is only entitled to offset undisputed or legally established debts; he is only entitled to retention rights insofar as these are based on the same contractual relationship.
4. On exceeding the credit period, interest to the amount of 8 % above the base interest rate then current will be charged.
5. If our claim to payment should be endangered due to subsequent circumstances resulting in a significant deterioration of the purchaser's financial position, we are entitled to set a due date.
6. In cases covered by Clause 5 and also Section A IV. 8, we are entitled to revoke the power of collection (Section A IV. 7) and demand payment in advance for any outstanding deliveries.
7. The purchaser can avoid the legal consequences specified in Clause 5 and in Section A IV. 8 by providing a security to the amount of our endangered claim for payment. If in the events specified in Clause 5 or Section A IV. 8, the purchaser neither provides advance payment nor appropriate security within a reasonable period, we are entitled to exercise our right to withdraw, excluding any claims for compensation on the part of the purchaser.
8. The statutory regulations on arrears of payment remain unaffected.
We are entitled to the customary mode and extent of securities for our debts, even if these are conditional or limited.
IV. Reservation of ownership
1. All goods supplied by us remain our property (reserved goods) until all debts have been discharged, including in particular the respective balances due to us within the scope of our business relationships. This also applies to future and contingent receivables. We are entitled to assign any claims to payments owed to us by the purchaser.
2. Any processing or finishing of the reserved goods is carried out on our behalf as manufacturers in the sense of Section 950 BGB (German Civil Code), without obligation on our part. The processed and finished goods shall count as reserved goods in the sense of Clause 1.
3. If the reserved goods are processed, combined or mixed with other goods by the purchaser, we are entitled to co-ownership in proportion of the invoiced value of the reserved goods to the invoiced value of the other goods involved. Should our ownership rights expire due combining, mixing or processing, the purchaser assigns to us as of now the ownership or expectant rights due to him in the new stock or object to the extent of the invoiced value of the reserved goods; in the case of processing, in proportion to the invoiced value of the reserved goods to the invoiced value of the other goods used, and will hold the same on our behalf, free of charge. Our co-ownership rights hall be considered as reserved goods in the sense of Clause 1.
4. The purchaser may only resell the reserved goods in the usual course of business on his normal terms of business and as long as he is not in arrears, provided that he retains title and that the receivables from reselling the goods according to Clauses 5 and 6 are transferred to us. The purchaser is not entitled to any other disposal of the reserved goods. Resale in the sense of this Section A IV. also applies to the use of the reserved goods to fulfil contracts for work and service.
5. The purchaser's receivables from resale of the reserved goods are herewith already assigned to us. They serve as security to the same extent as the reserved goods in the sense of Clause 1.
6. If the reserved goods are resold by the purchaser together with other goods, the receivables from this resale shall be assigned to us in proportion of the invoiced value of the reserved goods to the invoiced value of the other goods. In the case of the resale of goods in which we hold co-ownership shares in accordance with Clause 3, part of the claim corresponding to our share of the ownership shall be assigned to us.
7. The purchaser is entitled to collect receivables arising from resale, unless we revoke the power to collect as described in the cases in Section A II. 5 and A IV. 8. He is obliged at our request to inform his customers immediately of this assignment to us – unless we do so ourselves - and provide us with the necessary information and documents for collection. Under no circumstances is the purchaser entitled to assign the debts.
8. If the purchaser falls into arrears with payments and this indicates a risk to our realisation of a significant part of our claim, we are entitled to prohibit further processing of the goods supplied, to retrieve the goods and if necessary to enter the customer's premises for this purpose.
9. The purchaser must inform us immediately of any attachment or other adverse effects arising from claims by third parties.
10. If the value of the existing securities exceeds the secured debts by a total of more than 10%, we are obliged if requested by the purchaser to release securities at our discretion.
B. Performance of delivery
I. Lead times, delivery dates
1. Lead times begin on the date of our confirmation of order, but not prior to clarification of all the details of the order; the same applies to delivery dates. All lead times and delivery dates are subject to unforeseeable production failures and timely supply of the necessary raw materials and, insofar as merchandise is concerned, subject to supply availability and timely supply of the same. The date of dispatch from our works determines our adherence to lead times and delivery dates.
2. If the purchaser does not fulfil his contractual duties - including co-operative or accessory duties such as opening a letter of credit, providing inland or foreign certificates, making an advance payment or similar - we are entitled, regardless of our rights arising from the purchaser's default, to extend our lead times and delivery dates appropriately to correspond with the requirements of our production process.
3. In the event of force majeure the contractual obligations of both parties shall be in abeyance and deadlines and periods for fulfilling contractual duties shall be deferred correspondingly; cases of force majeure include industrial disputes at our own or other establishments, transport delays (in particular delays in or adverse effects on transport for the delivery of raw materials in the event of low or high water on waterways), machinery breakdown, government actions and other circumstances for which neither party is responsible. The other contractual party is to be notified immediately of any force majeure incident. Both contractual parties are entitled by six weeks at the earliest after receiving such notification to withdraw from the agreement. This shall not affect the purchaser's rights to withdraw according to Clause B.I.6.
4. Taking into account the long production lead times characteristic of the industry, the purchaser is not in the event of non-adherence to delivery dates entitled to the rights arising from Sections 281, 323 BGB (German Civil Code) until he has set us a reasonable deadline for delivery that – deviating in this respect from Sections 281, 323 BGB - is combined with the declaration that he will reject acceptance of performance once this period has expired; after unsuccessful expiry of this period, the claim to fulfilment is excluded. In the event of our final refusal of performance, there is no requirement to set an extension of time with the threat of non-acceptance.
5. In the case of default, we are liable for any damage and expenses proved by the purchaser to have arisen from or in connection with the delay of the performance owed only if we have defaulted on bindingly agreed lead times and delivery dates; our liability will be as specified by the provisions in Section C. Regardless of his statutory duty to avert, minimise or mitigate loss, the purchaser is obliged in particular to inform us immediately in writing of the damages recognisable for him that would arise from our default. We reserve the right to propose cover facilities to the purchaser.
6. The purchaser may withdraw from the contract without notice if it is definitely impossible for us to provide the complete delivery prior to transfer of risk. In addition, the purchaser may withdraw from the contract if it is not possible to deliver part of an order and he has a justified interest in refusing to accept part of the shipment. If this is not the case, the purchaser is to pay the contract price for the part shipment. The same applies to incapacity on our part. Section C applies otherwise.
II. Measurement, weight, grade
Deviations in measurement, weight or grade are admissible according to DIN or applicable practice. Weights are established on our calibrated scales and are used to determine the invoiced amount. The measurement values on which invoicing is based are from the records of our computing systems. At your request we will allow you to inspect the measured values archive of the calibrated scales within 3 months after weighing to check the agreement with our computer recorded measured values. Unless individual weighing is customarily carried out, the total weight of the shipment shall apply in each case. Any variances from the calculated individual weights shall be distributed proportionally to the same. The purchaser is at liberty to submit evidence of incorrect weighing measures in the measurement procedures we have carried out .
III. Shipment, packaging and transfer of risk
1. The freight forwarder or carrier is to be determined by us.
2. If loading or transportation of goods is delayed for any reason for which the purchaser is responsible, we are entitled, at the expense and risk of the purchaser, to store the goods at our discretion, to take all measures deemed suitable for preserving the goods and to invoice the goods as delivered. The same applies if goods notified as ready for dispatch are not called up within a reasonable period. This shall not affect any statutory regulations governing delay in acceptance.
3. Whenever it is customary in the trade, goods are shipped by us packed and protected against corrosion; the relevant costs are borne by the purchaser. We accept returned packaging, protection and/or transportation aids. We will not accept the purchaser's costs for return transport or for his own disposal of the packaging. Any packaging that exceeds transportation purposes or other special protection, e.g. for long-term storage or warehousing, requires an express agreement.
4. The risk is transferred to the purchaser upon handing over the goods to the carrier or freight forwarder, at the latest however upon leaving the works or the warehouse.
IV. Warranty claims
1. The goods are pursuant to contract if, at the time of transfer of risk, they do not deviate or deviate only insignificantly from the agreed specifications. Compliance with contract and freedom from defects of our goods is determined solely by the express agreements on quality and quantity of the ordered goods. Any liability for a specific application or fitness for a specific use will only be accepted if this has been expressly agreed; otherwise, the risk of fitness for use and application is solely the purchaser's. We are not liable for any deterioration or destruction or undesignated treatment of the goods following transfer of risk.
2. The contents of the agreed specification and any other expressly agreed application do not constitute a guarantee; a written agreement is required for a guarantee.
3. The purchaser is to inspect the received goods immediately after delivery. Warranty claims are enforceable only if claims for defects are made immediately in writing; claims for concealed defects must be made immediately after their discovery. After agreed acceptance, any claims for defects that could have been discovered during acceptance are excluded. Any defects arising during dispatch, in particular transport damage, must be recorded in the consignment note.
4. In the event of any complaints, the purchaser shall without delay give us the opportunity to inspect the rejected goods; at our request, the rejected goods or a sample of the same is to be made available to us at our cost. In the case of unjustified claims, we reserve the right to debit the purchaser with the freight and transshipment costs, plus the costs for inspection.
5. In the event of a defect we shall at our option - taking the customer's circumstances into account – render subsequent performance either by replacement delivery or reworking of the defective part. We may refuse the option of reworking if it should only be possible at unreasonable cost for us. Should such subsequent reworking not be carried out successfully by us within a reasonable period, the purchaser may set us a reasonable period for subsequent performance, on futile expiry of which he may either reduce the purchase price or withdraw from the contract; any further claims, e.g. for damages or the repayment of wasted costs, shall exist only according to the provisions of Section C.
6. The period covered by the statute of limitations in the event of effective delivery ends – except in the case of intent or gross negligence - upon the expiry of one year after delivery. This shall not affect the legal period for the statute of limitations for goods that have been used for a building according to their customary application and have thereby caused it to become defective. The statute of limitations shall not begin again upon reworking or replacement delivery.
7. Any recourse on the part of the purchaser according to Section 478 BGB (German Civil Code) is limited to the statutory scope of warranty claims enforced by third parties against the purchaser and requires the purchaser to have fulfilled his obligations in respect of having notified us of the defect according to Section 377 HGB (German Commercial Code).
8. In the case of goods sold as degraded material - e. g. so-called II-a material - the customer is not entitled to any warranty claims with regard to notified defects and such faults as are commonly to be expected.
C. General regulation and limitation of liability
1. Unless otherwise provided for in these terms and conditions, we shall be liable for damages caused by the violation of contractual or non-contractual duties or during the initiation of the contract only in cases of intent or gross negligence on the part of our legal representatives or vicarious agents and in the case of culpable violation of essential contractual duties.
2. In cases of violation of essential contractual duties caused by simple negligence we shall be liable - except in cases of intent or gross negligence of our legal representatives or vicarious agents - only for predictable losses typical of this type of contract.
3. The above limitations of liability do not apply to injury to life, limb or health.
4. Claims for personal injury or privately used property according to the Produkthaftungsgesetz (German Product Liability Act) shall remain unaffected.
The purchaser is not entitled to assign claims arising from his obligations to us without our prior agreement in writing.
II. Export clearance
Should a purchaser resident outside the Federal Republic of Germany (extraterritorial customer) or a person authorised by him collect goods and transport or ship them to the foreign country, the purchaser shall supply us with the export clearance documents required for tax purposes. If such certification is not provided, the purchaser is to pay the turnover tax applicable for deliveries within the Federal Republic of Germany on the invoiced amount.
III. Regulations for customer assembly
Assembly is to be carried out in compliance with the recognised rules of architecture. Particular attention should be paid to the relevant accident prevention regulations, general buildings inspectorate approval , the IFBS (German Institute for Fire Protection and Buildings Safety) assembly regulations applicable in each case and the rules of the professional planners responsible such as instructions, plans and static calculations. Suggestions for implementation and advice from our staff always contain only solutions given as examples from building practice that are intended to be considered merely as non-binding recommendations, unless we have agreed a separate consultation and planning contract for the building project.
IV. Drawings and documents / changes to design
Drawings, specification sheets and other documents remain our property. In addition, we reserve in an unlimited manner all ownership and copyright-based rights to beneficial ownership of all drawings and company documents . We also reserve the right to make technical improvements and design changes based on further development. We are not obliged to make technical improvements to products already delivered.
V. Applicable law
1. The laws of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.
2. When invoicing supplies from one EU member country to another, the turnover tax regulations of the 6th EC Directive apply in their operative form, unless precluded by national law. Insofar as turnover tax is to be levied by us, the purchaser shall pay the respective turnover tax along with the agreed (net) purchase price.
VI. Place of performance and legal venue
The place of performance for our obligation to supply is the location of the supply plant or warehouse from which we supply. The place of performance for the purchaser's obligation to pay and the legal venue for both parties to the contract is Siegen. We are also entitled to take action against the purchaser at his general place of jurisdiction.