of the company Hewing GmbH
Sect. 1 General provisions, scope of application
(1) The present General Sales Terms («AVB») apply to all our business relationships with our clients („Buyers“) The AVB shall apply only if the Buyer is an entrepreneur (Sect. 14 German Civil Code (German: Bürgerliches Gesetzbuch («BGB»)), a legal person under public law, or a special fund under public law.
(2) The AVB apply in particular to contacts for the sale and/or delivery of movable goods („Goods“), regardless of whether we manufacture the Goods ourselves or procure them from suppliers (Sections 433, 651 BGB).
(3) Our AVB apply exclusively. Any deviating, contrary, or supplemental general terms and conditions of the Buyer shall become a part of the contract only if we expressly consented in advance to the application thereof. This requirement of prior consent shall apply in any case, for example even if we, despite having knowledge of Buyer’s general terms and conditions, perform delivery to the Buyer without reservation.
(4) Any individual agreements (including side agreements, supplements, and amendments) entered into with the Buyer in an individual case shall under all circumstances always have priority over the present AVB. The contents of such agreements are determined by written contract, resp. our written confirmation thereof, unless proven otherwise.
(5) Legally relevant declarations and notices that must be issued to us prior to the conclusion of the contract (e.g. the setting of deadlines, notices of defects, notices of withdrawal or reduction of the purchase price) shall be effective only in writing.
(6) References to the applicability of statutory provisions shall only have clarifying effect. Even without such clarification the statutory provisions shall apply, unless they are directly modified, or expressly excluded in the present AVB.
Sect. 2 Conclusion of contract
(1) Our offers are binding unless they are expressly designated as non-binding and subject to change. Catalogues, technical documentation (e.g. drawing, plans, calculations, computations, references to DIN standards), other product descriptions or documents – including in electronic form – that we provided to the Buyer and to which we reserve all ownership and proprietary rights, shall also qualify as non-binding offers subject to change.
(2) In the case of binding offers we consider ourselves bound to the offer for two weeks — unless the offer expressly or implicitly provides otherwise. The contract is concluded by the Buyer’s order or by the Buyer’s written confirmation, no later however than on delivery of the Goods to the Buyer.
(3) In the case of non-binding offers subject to change, the Buyer’s order for Goods shall qualify as a binding offer to conclude a contract. Unless the order expressly or implicitly provides otherwise, we are entitled to accept this offer to conclude a contract within 2 weeks from our receipt thereof. Such acceptance can be declared either in writing (e.g. by a confirmation of the order) or by delivery of the Goods to the Buyer.
Sect. 3 Delivery date and late delivery
(1) The delivery date is agreed individually, resp. stated by us on acceptance of the order.
(2) In the event that we are unable to meet binding delivery dates for reasons for which we are not responsible (nonavailability of the goods or services), we will inform the Buyer without undue delay, stating at the same the new prospective delivery date. If the goods/services are not available within the new delivery period either, we are entitled to withdraw partly or fully from the contract; we will refund without undue delay any consideration already paid by the Buyer. A case of non-availability of goods/services within the meaning hereof, shall be understood to be, in particular, a late delivery to us by our suppliers in the event that we entered into a congruent supply agreement, if neither we, nor our supplier, is at fault, or we are not obliged to procure the goods/services in the individual case.
(3) Our default on delivery is regulated by statutory law. In all cases, however, a reminder by the Buyer is required. If we are in default through late delivery the Buyer may demand lump sum compensation for the damage/loss suffered through such default. The amount of such lump sum compensation for each full calendar week of delay is 0.5% of the net price (delivery value), in total however not exceeding 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Buyer suffered no damage/loss or only damage/loss of considerably lower value than the afore-stated lump sum.
(4) The Buyer’s rights from § 8 of the present AVB and our statutory rights, in particular in the case of an exclusion of the obligation to perform (e.g. on the grounds of impossibility or unreasonableness of the services/goods and/or subsequent performance) shall not be affected.
Sect. 4 Delivery, passing of the risk, acceptance, delay in acceptance
(1) Delivery is EXW (ex works, Incoterms 2010) Waldstraße 3, 48607 Ochtrup, Germany, which is also the place for the performance of delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be sent to a different destination (sale involving the carriage of goods (German: Versendungskauf)). Unless agreed otherwise, we are entitled to choose the type of shipment (in particular the shipping company, shipment route, packaging) at our discretion.
(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer no later than on handing over the Goods to the Buyer. In the case of a sale involving carriage of goods, however, the risk of accidental loss and accidental deterioration of the Goods and the risk of delays shall already pass over on delivery of the Goods to the forwarder, the carrier, or any other person or undertaking entrusted with carrying out shipment. If acceptance of the Goods is agreed, it shall determine the time of the passing of the risk. If acceptance of the Goods is agreed, the statutory provisions relating to contracts for work and services shall also apply for the rest. Delivery of possession, resp. acceptance of the Goods shall be deemed effected if the Buyer defaults on acceptance of delivery.
(3) If the Buyer is in default through late acceptance of delivery, if he omits an act of cooperation, or if our delivery is late for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage/loss, including additional expenses (e.g. storage costs). No other statutory claims (in particular adequate compensation, termination) shall be affected.
Sect. 5 Prices and terms of payment
(1) Unless otherwise agreed in the individual case, our current prices at the time of the conclusion of contract shall apply EXW (Ex Works, Incoterms 2010) Waldstraße 3, 48607 Ochtrup, Germany, plus the statutory value added tax.
(2) In the case of a sale involving carriage of goods (Sect. para. 4 (1)), the Buyer shall bear the transportation costs ex works and the costs of any transport insurance desired by the Buyer, as the case may be. Any customs duties, charges, taxes and other public dues shall be borne by the Buyer.
(3) The purchase price is due and payable within 14 days from invoicing and delivery, resp. acceptance of the Goods. We are, however, entitled even within the framework of an ongoing business relationship, to only perform delivery in full or in part subject to the condition of advance payment. We will declare such proviso together with the order confirmation, at the latest.
(4) On expiration of the above payment period, the Buyer is in default. The purchase price shall bear interest during the Buyer’s default at the then applicable statutory interest rate. We reserve the right to claim additional damage caused by default. Our right to claim the commercial interest on arrears (Sect. 353 HGB) shall not be affected in relation to entrepreneurs.
(5) The Buyer is entitled to setoff or retention rights only insofar as his claim is res judicata or undisputed. In the case of defects of the delivery, the Buyer’s counter-claims, in particular under Sect. 7 para. (6) sentence 2 of the present AVB shall not be affected.
(6) If it becomes apparent after the conclusion of contract (e.g. due to a motion for insolvency proceedings) that our claim to the purchase price is put at risk by the Buyer’s inadequate ability to perform, we are entitled to withhold performance under statutory law and – after setting a deadline where required – to withdraw from the contract (Sect. 321 BGB). In the case of contracts relating to the manufacture of non-fungible goods (custom-built products) we may give immediate notice of termination; the statutory provisions relating to the dispensability of setting a time limit shall not be affected.
Sect. 6 Retention of title
(1) We reserve our ownership of the sold goods until the full payment of all sums of our present and future claims under the purchase contract and arising from an ongoing business relationship (secured claim) has been effected.
(2) The Goods the title of which is reserved («Reserved Goods“) may not be pledged to any third party, nor transferred as security, before the full payment of the secured receivables has been effected. The Buyer shall inform us without undue delay if an application for the opening of insolvency proceedings is filed or in the event that a third party levies a security interest (e.g. attachments) on the goods we own.
(3) In the case of Buyer’s breach of contract, in particular in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract under statutory law and/or demand surrender of the Goods on the grounds of our retained title. The demand for surrender of possession does not at the same time include a notice of termination; we are rather entitled to merely demand surrender of the Goods and reserve the right to terminate the contract. If the Buyer fails to pay the due purchase price, me may only exercise these rights if we previously granted the Buyer a grace period for payment which expired to no avail or if, under statutory law, the setting of such a grace period can be dispensed with.
(4) Until such rule is revoked under lit. (c) herein-below, the Buyer is entitled to resell and/or process the Reserved Goods in the normal course of business. In this case, the following supplementary provisions shall apply in addition.
(a) The retention of title extends to any products, at their full value, that result from the processing, intermingling, or commixture of our Goods, ourselves being deemed the manufacturer. In the event that, in the case of processing, intermingling or commixture with third party goods, such third party’s reserved title survives, we shall acquire joint ownership of the resulting goods pro rata in proportion to the invoice values of the processed, intermingled, or commixed goods. Otherwise, the same shall apply to the product thus created as applies to the Goods delivered under retention of title.
(b) The Buyer herewith assigns in full, or in the amount of our share of the joint ownership according to the paragraph above, to us as security in advance for his receivables from third parties that were created by reselling the Goods or the product. We herewith accept the assignment. The Buyer’s obligations listed in para. (2) shall also apply with regard to the assigned receivables.
(c) The Buyer shall remain entitled alongside us to collect the receivables. We agree to not collect the receivables for as long as the Buyer fulfils his payment obligations to us, there is no defect in his ability to perform, and we do not assert our retained title by exercising one of the rights under para. (3). However, should the above occur, we may demand that the Buyer disclose the assigned receivables and their debtors to us, provide all information required for collection, surrender the related documents, and inform the debtors (third parties) of the assignment. In addition, we are entitled in that case to revoke the Buyer’s authorisation to resell and process the Reserved Goods.
(d) If the marketable value of the securities exceeds our receivables by more than 10% we, at the Buyer’s request, will release securities of our choice.
Sect. 7 Buyer’s claims based on defects
(1) The Buyer’s rights in the case of defects in quality and/or in title (including wrong and short delivery), and in the case of incorrect installation or of deficient installation instructions, shall be governed by statutory law, unless provided otherwise herein-below. In all cases, the special provisions that apply in the case of a final delivery of goods to a consumer (recourse to the supplier, Sections 478, 479 BGB) shall not be affected.
(2) Our liability for defects is based especially on the agreement of the qualities of the Goods.
(3) If no qualities were agreed it must be determined in accordance with statutory rules whether a defect exists or not (Sect. 434 (1) sentences 2 and 3 BGB). We assume no liability whatsoever for any public statements made by the manufacturer (e.g. advertising statements).
(4) The Buyer’s defects based on claims are subject to the condition that he fulfilled his statutory obligations to inspect the Goods and give notice of any defects (Sections 377, 381 HGB). If on inspection, or thereafter, a defect emerges we must be notified thereof in writing without undue delay.
(5) If the delivered Goods are defective, we may first choose whether to render subsequent performance by removing the defect (subsequent repair) or by delivering an item free of defects (delivery of a replacement). Our right to refuse subsequent performance under the statutory conditions shall not be affected.
(6) We are entitled to subject the owed subsequent performance to the condition that the Buyer pay the due purchase price. The Buyer is entitled, however, to withhold a reasonable part of the purchase price in proportion to the defect.
(7) The Buyer shall grant us the time and opportunity required to render the owed subsequent performance, in particular provide us with the rejected Goods for inspection purposes. In the case of the delivery of a replacement, the Buyer shall return the defective goods to us in accordance with statutory law. Subsequent performance neither includes the dismantling of the defective goods nor re-installation if originally we were not obliged to provide installation services.
(8) We shall bear the expenses required for inspection purposes and subsequent performance, in particular the costs of transport, travel, labour and materials (not: dismantling and installation costs), if there is in fact a defect. If in fact there is no defect we may demand that the Buyer reimburse the costs we incurred as a results of the unjustified defect rectification request (in particular the costs of inspection and transport), unless the absence of a defect was not discernible to the Buyer.
(9) In urgent cases, e.g. a hazard to operational safety or in order to avert unreasonable loss/damage, the Buyer is entitled to rectify the defect himself and to demand compensation from us for the expenses objectively required for such rectification. We shall be notified immediately, and where possible in advance, of such own rectification. The Buyer shall not be entitled to perform own defect rectification if we were entitled to refuse subsequent performance under statutory law.
(10) If subsequent performance fails, or if a reasonable time limit for subsequent performance to be set by the Buyer has expired to no avail, or can be dispensed with under statutory law, the Buyer may withdraw from the purchase contract or reduce the purchase price. No withdrawal right applies in the case of an insignificant defect.
(11) The Buyer shall be entitled to claim compensation for damage, resp. reimbursement of futile expenses, in the case of defects under Sect. 8 only, otherwise such right is excluded.
Sect. 8 Other liability
(1) Unless the present AVB, including the provisions herein-below, provide otherwise, we shall be liable under statutory law for any breaches of contractual or non-contractual obligations.
(2) We shall liable to pay compensation for damage – regardless of the legal grounds – in the case of wilful intent and gross negligence only if such damage is due to our fault. In the case of simple negligence we shall be liable under statutory law, subject to a milder liability standard (e.g. the standard of care exercised in own affairs), only for a) damage/loss caused by an injury to life, the body, or health, b) damage/loss caused by a not insignificant breach of an essential contractual obligation (obligation the fulfilment of which is conditio sine qua non for the proper implementation of the contract and upon which the other contracting party regularly relies and may rely); in this case, however, our liability is limited to compensation of the foreseeable damage that typically occurs.
(3) The limitations of liability resulting from para. (2) shall apply also to breaches of obligations by, resp. for the benefit of, persons for whose fault we are responsible under statutory law. They shall not apply if we fraudulently concealed a damage or provided a guarantee for the quality of the Goods, and in the case that the Buyer has claims under the German Product Liability Act (German: Produkthaftungsgesetz).
(4) In the case of a breach of contract, the Buyer may withdraw from the contract, or terminate it, only if we are responsible for the breach. A free termination right of the Buyer (in particular under Sections 651, 649 BGB) is excluded. For the rest, the statutory conditions and legal consequences shall apply.
Sect. 9 Limitation period
(1) Contrary to Sect. 438 (1) No. 3 BGB, the general limitation period for claims based on defects in title or in quality shall be one year from delivery. Where acceptance of delivery is agreed, the limitation period shall commence on acceptance of delivery.
(2) If, however, the Goods consist of a building structure, or an object that was used for a building structure in accordance with its usual type of use and caused its deficiency (construction material), the limitation period, in accordance with statutory law, shall be 5 years from delivery 5 (Sect. 438 para. (1) No. 2 BGB). The other special statutory rules relating to the statute of limitation (in particular Sect. 438 para. (1) No. 1, para. (3), Sections 444, 479 BGB) shall not be affected.
(3) The limitations periods under the laws on contracts for sale of goods set out herein-above shall apply likewise to contractual and non-contractual damages claims of the Buyer that are based on a defect of the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. Buyer’s damages claims under Sect. 8 para. (2) sentence 1 and sentence 2(a) and under the German Product Liability Act shall be subject exclusively to the statutory limitation periods.
Sect. 10 Choice of law and place of jurisdiction
(1) The present AVB and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of uniform international law, in particular the UN Convention of Contracts for the International Sale of Goods.
(2) If the Buyer is an entrepreneur within the meaning of the German Commercial Code (German: Handelsgesetzbuch, («HGB“)) a legal person under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is at our registered offices in Ochtrup, Germany. The same shall apply if the Buyer is a merchant within the meaning of Sect. 14 BGB. Nevertheless, we are also entitled in all cases to bring an action before the courts at the place of performance of the delivery obligation under the present AVB, resp. of an individual agreement of higher rank, or at the Buyer’s general place of jurisdiction. Statutory provisions of higher rank, in particular relating to exclusive jurisdictions, shall not be affected.