1.1. These terms apply only to companies within the meaning of § 310 German Civil Code (BGB) (hereinafter referred to as Customer). The previous General Terms and Conditions (hereinafter referred to as GTC) are replaced by the following terms, insofar as no objections are raised within a period of six (6) from receipt of the new version; after this objection period, the new GTC shall become integral parts of the contract. On expiry of the objection period, silence shall be deemed to be consent to the new version of the GTC.
1.2. Deviating, contradictory or supplementary GTC of the Customer, even with knowledge thereof, shall apply only with our express written consent.
<br/> 2. Quotation and Conclusion of the Contract
2.1. Our quotations are subject to change and without obligation. All contracts shall generally comes into effect on receipt of our written order confirmation, but at the latest on handover of the goods. Agreements deviating from the authoritative order confirmation and our GTC prior to or at the time of conclusion of the contract shall always require our express written confirmation.
2.2. The contract is concluded on condition of correct and punctual delivery by our suppliers. This shall only apply in the event that the non-delivery is beyond our control, in particular in the case of the conclusion of a congruent covering transaction with our supplier. The Customer will be informed of the non-availability of the performance without delay and the consideration will be refunded by us without delay.
2.3. Technical modifications and changes in form, colour and/or weight are reserved, insofar as they are reasonable for the Customer and the change is unavoidable for us due to a serious reason for the change.
2.4. If it becomes apparent after conclusion of the contract that our entitlement to the consideration is threatened by poor performance on the part of the Customer, in particular due to the credit limit being exceeded or overdue open invoices, we shall be entitled to refuse to fulfil the contract in line with § 320 BGB until the Customer has effected the consideration or provided security for same. We shall be entitled to withdraw from the Contract if the Customer fails to effect the already due consideration/security within a reasonable grace period set by us.
3. Prices, Payments, Default and Deterioration in Assets
3.1. Unless otherwise agreed between the Parties in individual cases, our prices shall be understood for delivery "EXW" (Incoterms 2010), exclusive of the statutory value-added tax applicable at the time of invoicing. Any shipment of the goods shall be made at the risk and expense of the Customer, even if in exceptional cases we bear the shipping costs. Furthermore, the additional costs for express shipment requested by the Customer as indicated in clause 6 shall be borne by the Customer.
3.2. Our invoices are payable within 30 days of receipt of the invoice net without any deduction in EURO at our payment agent. If no such payment is received, the Customer will be automatically in default.
3.3. Payment shall be regarded as having been made when the Customer has made the payment to us in full within the meaning of § 362 BGB.
3.4. If a situation as defined in clause 2.4 exists on the part of the Customer, we shall be entitled to demand immediate payment of the entire remaining amount or to demand other securities.
3.5. From the date of default, the Customer shall be obliged to pay default interest in the amount of 8% above the base lending rate unless the Customer can prove lesser damages.
4. Offsetting and Right of Retention
The Customer shall be entitled to offset claims or to exercise a right of retention only with respect to claims that are undisputed or that have been declared res judicata. The exercising of a right of retention shall only be permitted insofar as the counter-claim is based on the same contractual relationship.
5. Reservation of Title and Assignment of Securities
5.1. We shall retain title to the sold goods until complete payment of all claims arising out of the business relationship with the Customer has been received by us.
5.2. Processing and reshaping shall be effected for us, the manufacturer, in all cases, but without any obligation for us. If our co-ownership lapses through mixing, then the Customer shall already now assign to us its co-ownership of the merged product pro rata to the value of the invoice amount. The Customer shall store the goods to which we hold (co-)ownership free of charge for us.
5.3. The Customer undertakes to protect the goods to which we hold (co-)ownership against loss, damage or deterioration with the care of a prudent businessman, also vis à vis his customers. Necessary maintenance or inspection work shall be carried out in good time by the Customer at his own expense. The Customer undertakes to adequately insure the goods to which we hold (co-)ownership against fire, water damage and theft to cover the reinstatement value.
5.4. The Customer shall be entitled to process and sell the goods subject to reservation of title within the ordinary course of business. Pledging or transfer of ownership by way of security shall not be permitted. The Customer hereby already assigns any debts arising out of the resale or any other legal ground with respect to the goods subject to reservation of title to us in full with all ancillary rights as security. We hereby accept the assignment. Following the assignment, the Customer shall be entitled to collect the debt. This assignment can be revoked if the Customer fails to meet his payment obligations, is in default with payment or application has been made for the initiation of insolvency proceedings.
5.5. In the event of seizures by third parties and other third-party claims to the goods subject to reservation of title, the Customer shall draw attention to our title and notify us without delay. Costs and damages shall be borne by the Customer.
5.6. In the event of default with payment or other behaviour by the Customer contrary to the Contract, we shall be entitled – after setting a reasonable grace period for fulfilment – to withdraw from the Contract and to take back the goods subject to reservation of title at the expense of the Customer or to demand the assignment of the Customer’s claims for surrender vis à vis third parties. We shall be entitled to dispose of the goods subject to reservation of title taken back by us.
5.7. This shall not infringe our rights to claim compensation for damages. The same shall apply in the event of any other behaviour by the Customer contrary to the Contract.
5.8. We undertake to release the securities due to us on demand by the Customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 20%. The choice of the securities to be released shall be at our discretion.
6. Period for Delivery and Delivery
6.1. The dates and periods quoted by us are without obligation unless otherwise expressly<br/> agreed in writing. We ship ex warehouse or ex works. If the goods cannot be shipped for reasons attributable to the Customer, Hy-Lok shall be entitled to place the goods in storage at the risk and expense of the Customer. In such cases the date of storage shall be deemed to be the date of delivery; the warehouse receipt shall then replace the delivery documents.
6.2. The risk of accidental loss or accidental impairment of the goods shall pass to the Customer as soon as the goods leave our works or warehouse or that of our sub-supplier, and in the case of sales shipment on handover of the goods to the shipping agent, freight forwarder or other persons or institutions charged with the execution of the shipment. If the goods are ready for shipment and shipment or acceptance is delayed for reasons beyond our control, the risk shall pass to the Customer on receipt of the notification of readiness for shipment by the Customer.
6.3. Unless otherwise agreed, method of shipment, route and means of protection shall be at our discretion. The goods shall be shipped unpaid for the account of the Customer. Transport insurance will be concluded only at the express instruction of the Customer. Any transport damage or loss shall be indicated immediately on receipt of the goods and confirmed by the freight carrier on the shipping documents.
6.4. Appropriate partial deliveries and partial services shall be permitted to a reasonable extent.
6.5. If delivery to be made by us is delayed by unforeseeable circumstances beyond our control (e.g. labour disputes, operational breakdowns, transport obstacles, shortages of raw materials – in each case also in the works of our sub-suppliers – and failures of our own suppliers to deliver punctually), we shall be entitled to postpone delivery for the duration of the obstacle. In the event of failure of our own suppliers to deliver punctually, we shall also be entitled to withdraw from the Contract. If the originally agreed delivery time is exceeded by more than two weeks, the Customer shall be entitled to withdraw from the Contract. Claims for damages shall be excluded.
6.6. If we are in default with a delivery date agreed in writing, the Customer shall be entitled to withdraw from the Contract after setting us a reasonable grace period of at least 14 days, insofar as the granting of a grace period is superfluous. We shall be entitled to also grant ourselves the right to withdraw from the Contract in the event that contrary to the contractual obligation and for reasons beyond our control, our supplier fails to make delivery to us within a further 7 days after unsuccessful expiry of the above grace period. The right of the Customer to claim damages shall be determined by the provisions of clause 8.
7.1. Warranty claims shall be subject to the Customer observing the inspection and notification obligations in accordance with § 377 German Commercial Code (HGB). The Customer is responsible for examining whether the goods ordered from us are suitable for the intended application.
7.2. The customer must inform us of obvious defects in writing within a period of two (2) weeks of receipt, otherwise all warranty claims shall be voided. Timely dispatch shall be sufficient to observe the deadline. The Customer bears the full burden of proof for all eligibility criteria, in particular for the defect proper, for the date of discovery of the defect and for the notification in good time.
7.3. Wear of wear parts during the course of normal use does not represent a defect.
7.4. In the event of defects in the goods, we shall initially assume warranty through subsequent improvement or replacement delivery at our discretion. If we are not willing or are unable to perform subsequent improvement or replacement delivery, the Customer shall be entitled to reduce the purchase price or to withdraw from the Contract at his discretion; the latter and all claims for damages instead of performance shall not apply, however, in the case of only minor breaches of contract. The right of the Customer to claim damages shall be determined by the provisions of clause 8.<br/> 7.5. In the event of remedying of the defect, we shall be obliged to bear all expenses incurred in the remedying of the defect, such as transport, travel, labour and material costs, whereby transport and travel costs shall only be borne insofar as they are not attributable to the goods delivered having been moved to a place other than the place of fulfilment.
7.6. Claims for defects shall become statute barred 12 months after delivery of the goods to the Customer. This shall not apply if the Customer has not notified us of the defect in good time (see clause 7.3. above), or if the breach of our obligations was wilful or grossly negligent. In all other cases the provisions of § 444 and 479 BGB shall apply.
7.7. The Customer receives no guarantees from us in the legal sense. This does not apply to manufacturers’ guarantees.
7.8. If we breach obligations not related to the performance as defined in § 241 (2) BGB, the Customer shall be entitled to withdraw from the Contract and to claim damages instead of performance over and above the legal provisions only when he has previously given a written warning and the breach of the obligations has continued.
8. Damages, Liability Disclaimer
8.1. We shall not be liable for damage directly to the subject of delivery or for consequential damages of any kind, in particular for loss of profits or other pecuniary damages on the part of the Customer. The above liability disclaimer shall not apply if and insofar as we or our vicarious agents can be accused of intent or gross negligence. In all other points we shall be liable only in accordance with the Product Liability Act, for injury to life, limb and health, or insofar as we have maliciously concealed a defect.
8.2. If we have negligently breached a cardinal obligation for the fulfilment of the contractual purpose, the level of the liability shall be limited to the typical damage in such transactions foreseeable at the time of conclusion of the Contract or at the latest at the time of discovery of the breach of obligation.
8.3. In the case of culpable breaches of cardinal contractual obligations, our liability shall be limited to foreseeable damage typical for this type of contract. The liability for intent shall remain unaffected by this waiver. Claims for damages for injury to life, limb and health and claims under the Product Liability Act shall remain unaffected by this waiver. This shall also apply if we can be accused of malice, § 444 BGB.
9. Applicable Law, Severability Clause
9.1. This contract shall be subject to the law of the Federal Republic of Germany, to the exclusion of the provision of the UN Convention on Contracts for the International Sale of Goods (CISG).
9.2. Should any provision of this contract be or become wholly or partly void or unenforceable, this shall not affect the validity and enforceability of the other provisions of this Contract. The Parties shall be obliged to replace the void or unenforceable provision with a valid and enforceable provision coming as close as possible to the original economic purpose of the void or unenforceable provision intended by the Parties. The same shall apply to gaps in the Contract.
10. Place of Performance and Venue
10.1. Unless otherwise indicated in our order confirmation, place of performance shall be the place of business of our branch carrying out the respective delivery.
10.2. Venue shall be Bremen. We shall also be entitled, however, to bring action against the Customer at his place of business. Even in the case of international deliveries, sole venue for all disputes arising out of or in conjunction with this Contract shall be Bremen (Art. 17 of the European Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters = Brussels Convention). We reserve the right to also bring proceedings in any other court which has jurisdiction by virtue of the Brussels Convention.
11. Federal Data Protection Act
We are entitled to store all data on the Customer received in conjunction with the handling of the contract for our own purposes in observance of the Federal Data Protection Act.
Hy-Lok D Vertriebs GmbH<br/> An der Autobahn 15<br/> D - 28876 Oyten