General terms and conditions of delivery
§ 1 Scope of application
1.1 The following general terms and conditions of delivery shall apply for all deliveries, performances and tender offers of HERBST Beheizungs-Technik GmbH & Co. KG (hereinafter "supplier"). These general terms and conditions are part of all contracts, that the supplier concludes with his contractual partners (hereinafter also referred to as the "purchaser") for the products or services he offers. They also apply to all future deliveries, services or offers to each purchaser, even if they have not been expressly referred to or agreed again.
1.2 Terms and conditions of the purchaser or third parties shall not apply and are rejected. Even if the supplier refers to a letter that contains or refers to the terms and conditions of the purchaser or a third party, this does not mean that these terms and conditions apply.
§ 2 Offer and conclusion of contract
2.1 All offers of the supplier are subject to changes and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. All order confirmation with regard to such offers have to be issued within fourteen (14) days after receipt of the offer.
2.2 Decisive for the legal relationship between the supplier and the purchaser is the written purchase contract, including this general terms and conditions of delivery. These documents reflect the whole agreement between the contracting parties regarding the subject matter of the contract. Verbal commitments made by the supplier prior to the written conclusion of this contract are legally non-binding and all verbal agreements between the contracting parties will be replaced by the written contract unless such agreements expressly imply a continuing binding effect.
2.3 Additions and changes to the agreements in place, including this general terms and conditions of delivery, must be in written form in order to be effective. With the exception of managing directors or authorized representatives, the employees of the supplier are not entitled to make verbal agreements that deviate from the written agreement. To fulfil the written form, telecommunication transmission is sufficient, in particular by fax or email, provided that the copy of the signed declaration is sent.
2.4 All information provided by the supplier regarding the object of the delivery or service (e.g. weights, dimensions, utility values, loading capacity, tolerances and technical data) as well as visual representations of the same (e.g. drawings and illustrations) only imply approximate values, unless the usability for the contractually intended purpose requires exact conformity. These information do not guarantee any specific characteristics of the relevant goods and services, but are rare descriptions or identifications of the delivery or service. Customary deviations and deviations, that are based on legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided they do not impair the usability for the contractually intended purpose.
2.5 The supplier reserves the ownership or copyright of all offers and cost estimations submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents that are made available to the purchaser. Without the express consent of the supplier, the purchaser shall not make these items itself or their content accessible to third parties, announce them, use them or reproduce them by himself or by third parties. At the request of the supplier, the purchaser must return these objects completely to the supplier and destroy any copies that may have been made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This does not include the storage of electronically provided data for the purpose of normal data protection.
§ 3 Prices and payment
3.1 The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EUR ex-works plus packaging, VAT, customs duties for export deliveries as well as withholding taxes, fees and other public charges.
3.2 As far as the agreed prices are based on list prices of the supplier and the delivery should take place more than four months after conclusion of the contract, the list prices of the supplier valid on the delivery date apply (in each case minus an agreed percentage or fixed discount).
3.3 If erection or assembly is also part of the contract and nothing else has been agreed, the purchaser bears all necessary additional costs such as travel and transport costs or trips in addition to the agreed remuneration.
3.4 Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of receipt by the supplier is decisive for the date of payment. Payment by cheque is excluded, unless it is agreed separately in individual cases. If the payment of the Purchaser fails, the outstanding amounts shall be charged with 5 % p.a. from the due date; the assertion of higher interest and further damage in the event of delay remains unaffected.
3.5 The purchaser shall only be entitled to set-off or retain if and insofar as the counterclaims are undisputed, ready for judgment or legally binding or arise from the same contract under which the delivery was made.
3.6 The supplier is entitled to carry out or provide outstanding deliveries or services only against advance payment or security, if the supplier, after conclusion of the contract, becomes aware of circumstances, which are likely to reduce the creditworthiness of the purchaser significantly and which endanger the payment of the supplier's open claims by the purchaser from the respective contractual relationship (including other individual orders to which the same framework contract applies).
§ 4 Delivery and delivery time
4.1 All deliveries are made ex-work unless expressly agreed otherwise.
4.2 Deadlines and dates for deliveries and services that have been predicted by the supplier are non binding approximate dates, unless a fixed deadline or a fixed date has been expressly agreed. If shipping has been agreed, delivery times and dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
4.3 Compliance with deadlines for deliveries is subject to the timely receipt of all necessary information communicated by the purchaser, necessary permits (including any necessary import licenses) and approvals, in particular of any drawings or plans, as well as compliance with the agreed terms of payment, including the timely payment of separately agreed down payments in individual cases and other obligations by the purchaser. If these requirements are not met in time, the delivery times will be extended accordingly, provided that the supplier is not responsible for a delay.
4.4 The supplier is not liable for the impossibility of delivery or for delays in delivery, insofar as these situations are caused by force majeure or other events which were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, delays in transport, strikes, lawful lockouts, pandemic situations, labour defects, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the missing, incorrect or not timely delivery by suppliers) and for which the supplier is not responsible. If such events make delivery or performance significantly more difficult or impossible for the supplier and the hindrance is not only temporary, the supplier is entitled to resign from the contract. In the event of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the disability plus a reasonable starting period. If the late delivery or service is reasonably unacceptable in such a situation, the purchaser may resign from the contract by means of an immediate written declaration to the supplier.
4.5 The supplier is only entitled to make partial deliveries if
• the partial delivery can be used for the purchaser within the scope of the contractual purpose,
• the delivery of the remaining ordered goods is ensured and
• the purchaser does not incur any significant additional expenditure or additional costs (unless the seller agrees to assume these costs).
4.6 If the supplier is in default with a delivery or service or if a delivery or service becomes impossible for any reason, the supplier's liability is limited to compensation in accordance with § 8 of these general terms and conditions of delivery.
§ 5 Place of performance, shipping, packaging, transfer of risk, delivery acceptance
5.1 Place of performance for all obligations from the contractual relationship is Neuenrade, unless otherwise specified. If the supplier is also responsible for the installation or assembly, the place of performance is the place where the installation or assembly has to take place.
5.2 The shipping and packaging method is subject to the supplier's due examination unless these methods are explicitly agreed and part of the contract.
5.3 The risk is transferred to the purchaser at the latest when the delivery item is handed over (in which the start of the loading process is decisive) to the forwarder, carrier or any other third party designated to carry out the shipment. This also applies if partial deliveries are made or the supplier has committed further service obligations (e.g. shipping or installation). If the shipment or delivery is delayed due to a circumstance, which is caused by the purchaser, the risk passes over to the purchaser from the day on which the delivery item is ready for dispatch and the supplier has notified the purchaser about that.
5.4 The purchaser bears the storage costs after the transfer of risk. In case of storage by the supplier, the storage cost amount to 0.25 % of the invoice sum of the delivery items to be stored per expired week. The right to assert and prove further or lower storage costs remains unaffected.
5.5 The shipment is only insured by the supplier at the explicit request of the purchaser and at his expense against theft, breakage, transport, fire and water damage or other insurable risks.
5.6 If an acceptance has to take place, the purchased item is considered to have been accepted if
• the delivery and, if the supplier also owes the installation or assembly, the installation or assembly is completed,
• the supplier has informed the purchaser of the completion by referring to the acceptance fiction in accordance with this section 5.6 and has asked him to accept it,
• two weeks have passed since delivery or installation, or the purchaser may have started using the purchased item after a test run and in this case six working days have passed since delivery or installation or assembly and
• the purchaser has not formally accepted the goods within this period for any other reason than a defect reported to the supplier that makes the use of the delivery item impossible or significantly impairs it.
§ 6 Warranty, defects
6.1 The warranty period covers one year from delivery or, if acceptance is required, from acceptance. This deadline does not apply to claims based on mandatory law such as product liability or injury to life, body or health, or on wilful or grossly negligent misconduct on the part of the supplier or his agents, which expire in accordance with the statutory provisions. § 438 para. 1 No. 2 and para. 3 German Civil Code (BGB) as well as § 634a para. 1 No. 2 BGB remain unaffected.
6.2 The delivered items must be examined with due care immediately after delivery to the purchaser or to the third party determined by him. With regard to obvious defects or other defects, which would have been recognizable by an immediate inspection done with due care, these defects are deemed to have been approved by the purchaser if the supplier does not receive a written notice of defects within (seven) working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the purchaser if the notice of defects is not received by the supplier within (seven) working days after the time in which the defect appeared; If the defect was already evident at an earlier point in time on a regular use basis, this earlier point in time is decisive for the start of the complaint period of seven working days. At the supplier's request, a rejected delivery item must be returned to the supplier free of freight charges. If the complaint is justified, the supplier reimburses the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.
6.3 In the event of defects in the delivered items, the supplier is entitled to rectification or replacement according to his choice within a reasonable period of time. In the event the rectification or replacement fails due to impossibility, unreasonableness, refusal or unreasonable delay the purchaser can resign from the contract or reduce the purchase price appropriately.
6.4 If a defect is due to the fault of the supplier, the purchaser can demand compensation under the conditions specified in § 8.
6.5 In the event of defects in components from other manufacturers that the supplier cannot remedy for licensing or factual reasons, the supplier will, at his option, assert his warranty claims against the manufacturers and upstream suppliers for the account of the purchaser or assign them to the purchaser. Subject to these general terms and conditions and all further legal requirements warranty claims against the supplier exist for such defects if the judicial enforcement of the above-mentioned claims against the manufacturer and sub-suppliers was unsuccessful or, for example due to insolvency, is futile. For the duration of the legal dispute, the limitation of the relevant warranty claims of the purchaser against the supplier is inhibited.
6.6 The purchaser is responsible for the functionality, material selection, performance data and application limits of the intended application, since the entire system arrangement must be taken into account when selecting products in order to ensure safe and trouble-free operation.
6.7 The supplier is not liable for material defects, which are due to the improper operation and missing or faulty maintenance on the part of the purchaser.
6.8 The warranty is void if the purchaser changes a delivery item or has it changed by third parties without the consent of the supplier and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the purchaser has to bear the additional costs of remedying the defect arising from the change.
6.9 A delivery of used items agreed in individual cases with the purchaser is subject to the exclusion of any warranty for material defects.
§ 7 Intellectual property rights
7.1 In accordance with this section 7, the supplier warrants that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner will immediately notify the other contractual partner in writing if claims are asserted due to infringement of such rights.
7.2 In case that the delivery item infringes any industrial property right or copyright of a third party, the supplier will, at his own discretion and at his own expense, modify or replace the delivery item in such a way that no third party rights are infringed but the delivery item still fulfils the contractually agreed function, or give the purchaser the right of use by entering into a license agreement with the third party. If the supplier does not succeed within a reasonable period, the purchaser is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the purchaser are subject to the restrictions of the provisions of § 8 of this general terms and condition.
7.3 If products of other manufacturers supplied by the supplier infringe intellectual property rights, the supplier shall, at its discretion, either assert its claims against the manufacturers and sub-suppliers for the account of the purchaser or assign them to the purchaser. In these cases, claims against the supplier shall only exist in accordance with the provisions of § 7 if the legal enforcement of the above-mentioned claims against the manufacturers and sub- suppliers has been unsuccessful or, for example due to insolvency, is legally futile.
§ 8 Liability for damages due to default
8.1 Supplier’s liability for damages is, irrespective of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, limited in accordance with the provisions of this § 8 insofar as Supplier’s fault is relevant in each of these cases.
8.2 The supplier shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or vicarious agents, insofar as it is not a breach of essential contractual obligations. Essential contractual obligations are in particular the obligation to deliver and erect the delivery item in a timely manner, its freedom from defects of title and such material defects that impair its functionality or suitability for use more than only insignificantly, as well as advisory, protective and custodial obligations that are intended to enable the purchaser to use the delivery item in accordance with the contract or the protection of body or life of the purchaser's personnel or the protection of his property from significant damage.
8.3 Insofar as the supplier is liable for damages pursuant to § 8.2, this liability is limited to damages which the supplier foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due care. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only eligible for compensation if such damages are characterized as a typical damage if the delivery item is used as intended.
8.4 In case of liability for simple negligence, the supplier's obligation to pay compensation for property damages and the resulting further financial loss is limited to an amount of EUR 6.000,00 per damage event, even if it is a violation of essential contractual obligations.
8.5 The preceding exclusions and limitations of liability apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the supplier.
8.6 Insofar as the supplier provides technical information or advice and this information or advice is not part of the contractually agreed scope of services owed by him, this provision shall be done free of charge and to the exclusion of any liability.
8.7 The limitations of provisions of § 8 shall not apply to the liability of the supplier due to intent, for guaranteed characteristics, due to injury to life, body or health or pursuant to the German Product Liability Act (Produkthaftungsgesetz).
§ 9 Retention of title
9.1 The reservation of title agreed hereinafter serves to secure all current and future claims of the supplier against the purchaser arising from the supply relationship existing between the contracting parties, including balance claims from a current account relationship limited to this supply relationship.
9.2 Goods delivered by the supplier to the purchaser remain property of the supplier until all secured claims have been fully paid. The goods as well as the goods taking their place in accordance with the following provisions covered by the retention of title are hereinafter referred to as "retained goods".
9.3 The purchaser shall keep the retained goods for the supplier free of charge.
9.4 The purchaser is entitled to process and sell the retained goods within the ordinary course of business until the event of realisation (§ 9.9). This authorisation can be revoked by the supplier if the purchaser has failed to met his payment obligations, if the purchaser has become insolvent or if the financial situation of the purchaser has deteriorated significantly. Pledging and transferring by way of security are not permitted in any way.
9.5 Processing of the goods subject to retention of title by the purchaser, is carried out in the name and for the account of the supplier as manufacturer in sense of § 950 of the German Civil Code and that the supplier is immediately the proprietor - if the processing is made from substances of several owners or the value of the processed item is higher than the value of the goods subject to retention of title - the co-title (fractional ownership) of the newly created item is acquired. The proportion of title shall follow from the proportion of the invoice value of the goods delivered under retention of title and the invoice value of the other goods. In the event that the supplier does not acquire such property, the purchaser is already transferring his future property or - in the above-mentioned ratio – co-title of the newly created item to the supplier for security. If the goods subject to retention of title are assembled or inseparably mixed with other items to form a single item and one of the other items is to be regarded as the main item, the supplier shall, insofar as the main item belongs to him, transfer the co-title of the unitary item to the purchaser proportionately in the manner set out in § 9.5 S. 1.
9.6 The purchaser herby assigns to the seller all claims arising from the resale of the goods delivered under retention of title - in the event of the supplier's co-title of the goods subject to retention of title, in proportion to the co-title share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the retained goods, such as insurance claims or tort claims in the event of loss or destruction. The supplier revocably authorizes the purchaser to collect the claims assigned to the supplier in his own name. The supplier may only revoke this direct debit authorization in the event of liquidation.
9.7 In the event of any third party action against purchaser’s goods delivered under retention of title or any receivables assigned to the seller, the purchaser shall notify such party of sellers’ property and immediately inform the seller about such action to enable the seller to enforce his property rights. If the third party is unable to reimburse the supplier for the judicial or extrajudicial costs incurred in this context, the purchaser shall be liable to the supplier for this.
9.8 The supplier will release the goods subject to retention of title as well as the items or claims taking their place, insofar as their value exceeds the amount of the secured claims by more than 20%. The choice of the items to be released is up to the supplier.
9.9 If the supplier withdraws from the contract in case of breach of contract by the purchaser (in particular delay in payment), the supplier is entitled to demand return of the retained goods.
§ 10 Assembly and erection
Unless otherwise agreed upon, assembly and erection shall be subject to the following provisions:
10.1 The purchaser shall provide at its own expense and in good time:
10.1.1 all excavation and construction work and other ancillary work outside the scope of suppliers business, including the necessary skilled and auxiliary staff, building materials and tools,
10.1.2 the equipment and materials necessary for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants,
10.1.3 energy and water at the point of use including connections, electricity and lighting,
10.1.4 suitable, dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances. Furthermore, the purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the supplier and of the erection personnel at the site,
10.1.5 protective clothing and devices that are required due to particular circumstances on the erection site.
10.1.6 Before the start of the assembly work, the purchaser must provide the necessary information about the location of concealed electricity, gas, water pipes or similar systems as well as the required static information proactively.
10.2 Prior to assembly or erection, the materials and equipment required for the start of the work must be available on erection or assembly site and any preparatory work before the start of the assembly must have come to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site itself must be levelled and cleared.
10.3 If assembly, erection or commissioning are delayed due to circumstances for which the supplier is not responsible, the purchaser shall bear the costs for the waiting time and additionally required travelling of the supplier or the erection personnel to a reasonable extent.
10.4 The purchaser shall attest to the supplier the assembly staff's weekly working hours and the completion of erection, assembly or commissioning in due time.
§ 11 Final provisions
11.1 If the purchaser is a business man, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the supplier and the purchaser shall, at the supplier's option, be Neuenrade or the purchaser’s registered office. In these cases however, Neuenrade is the exclusive place of jurisdiction for any legal action against the supplier. Mandatory statutory provisions regarding exclusive place of jurisdiction remain unaffected by this provision.
11.2 The relationships between the supplier and the purchaser are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
11.3 Insofar as the contract or these general terms and conditions of delivery contain a regulatory gap, those legally effective provisions shall be deemed to fill these gaps which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these general terms and conditions of delivery, if they had been aware of the gap.