of Hermeler Maschinenbau GmbH

Status: 14.03.2023

 

§ 1 General, scope of application

  1. These General Terms and Conditions ("GTC") apply to all our business relationships with our customers ("Buyer" or "Customer").
  2. Our entire offer is directed exclusively at entrepreneurs within the meaning of § 14 para. 1 BGB (German Civil Code). The customer confirms to act as an entrepreneur in this sense.
  3. Individual agreements, e.g. in offers made by us, take precedence over these GTC (§ 305b BGB). The customer's terms and conditions shall not apply and shall not become part of the contract, even if their validity is not separately objected to in individual cases.

 

§ 2 Conclusion of the contract

  1. Contracts are concluded on the basis of offers made by us. Our offers are either subject to confirmation or the period named in the offer is binding. Which is the case, results from our offers.
  2. The contract is concluded in the case of offers that are subject to confirmation or if the acceptance period is exceeded by your order and our order confirmation, otherwise by your order. The order is placed by signing the offer.

 

§ 3 Goods, purchase price, terms of payment

 

  1. Goods, scope of services and purchase price result from our offer.
  2. The terms of payment shall be set out in the offer. Insofar as the offer does not specify any terms of payment, 50 per cent of the gross purchase price shall be due upon confirmation of the order and 50 per cent upon delivery of the goods.
  3. If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract.
  4. The buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed.

 

§ 4  Terms of delivery

  1. The delivery period results from our offer.
  2. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this immediately. At the same time, we will inform the buyer of the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part. We will immediately refund any consideration already paid by the buyer. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obliged to procure in the individual case.
  3. Delivery shall be made in accordance with the Incoterms clause specified in our offer. In the absence of a clause, delivery shall be FCA Lohmannstr. 4, 48336 Füchtorf Incoterms 2020.
  4. If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a flat-rate compensation of 0.5 per cent of the net value of the goods, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
  5. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The buyer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned lump sum.

 

§ 5 Retention of title

  1. The goods remain our property until full payment has been made.
  2. Our customers are entitled to resell the goods subject to retention of title in the ordinary course of business. However, they may not pledge the goods subject to retention of title or assign them by way of security. In this case, our customer already now assigns to us all claims from such a resale in the amount of the invoice value of our claim, regardless of whether this takes place before or after any processing of the goods delivered under retention of title. We accept this assignment. Notwithstanding our authority to collect the claim ourselves, our customers shall remain authorised to collect the claim even after the assignment. In this context, we undertake not to collect the claim ourselves as long and insofar as our customers meet their payment obligations, no application for the opening of insolvency or similar proceedings has been filed and there is no cessation of payments. Insofar as the aforementioned securities exceed the claims to be secured by more than 10 percent, we are obliged to release the securities at our discretion upon the customer's request.

 

§ 6 Claims in the event of defects

  1. The statutory provisions shall apply to the purchaser's rights in the event of material defects and defects of title, unless otherwise stipulated below.
  2. The basis of our liability for defects is the agreement reached on the quality and the assumed use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in product lists or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality was not agreed, it shall be assessed according to the statutory regulation whether a defect exists or not.
  3. As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence. Furthermore, the buyer's claims for defects presuppose that he has fulfilled his statutory duties of examination and notification. Notification must be made immediately, at the latest within seven days of receipt of the goods.
  4. If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
  5. We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
  6. The buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the buyer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, attachment or assembly of a defect-free item if we were not originally obliged to perform these services; claims of the buyer for reimbursement of corresponding costs ("dismantling and assembly costs") shall remain unaffected.
  7. We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTC if there is actually a defect. Otherwise, we may demand reimbursement from the buyer of the costs arising from the unjustified request to remedy the defect if the buyer knew or was negligent in not knowing that there was actually no defect.
  8. Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 7 and are otherwise excluded.

 

§ 7 Limitation of liability and liability limitations

  1. Our liability for simple negligence is excluded. Our liability is also limited to the typically foreseeable damage.
  2. The limitations and exclusions of liability according to para. 1 do not apply
    1. in the event of injury to life, limb or health;
    2. in the event of a breach of obligations, the fulfilment of which makes the proper performance of the agreement possible in the first place and on the fulfilment of which the customer regularly relies and should also be able to rely (cardinal obligations);
    3. if we have given a guarantee (§ 443 para. 2 BGB).
  3. The provisions of the Product Liability Act shall remain unaffected.  

 

§ 8 Final provisions

  1. Should individual or several provisions of these GTC be or become invalid, the remaining provisions shall nevertheless apply. The invalid or void provision shall be replaced by a provision which the parties would have agreed upon to achieve the same economic success if they had been aware of the defect.
  2. The GTC and the entire legal relationship between us and our customers are subject to German law including the provisions of the UN Convention on Contracts for the International Sale of Goods (if applicable). The place of jurisdiction for all disputes arising from this contract is our registered office, although we may also take legal action against customers at other places of jurisdiction if these are opened under the applicable law. Exclusive places of jurisdiction shall remain unaffected by this agreement on the place of jurisdiction.