General Terms and Conditions (“T&C”)
So we both know what to expect
Art. 1 Area of Application, Formalities
(1) These General Terms and Conditions shall apply to any and all commercial transactions we enter into with a client (hereinafter, the “Purchaser”).
(2) These T&C shall apply in particular to agreements entered into related to the sale and/or delivery of chattel property (hereinafter, the “Goods”), in cases both where we produce those Goods ourselves and where we purchase them with suppliers. Unless otherwise agreed upon, the T&C shall apply as amended, in their version current at the time the Purchaser orders or, to all intents and purposes, that version last notified to them in writing, and in the manner of a framework agreement applicable to future agreements of the same kind as well, without our being required to refer to them for every single case in point.
(3) Our T&C shall be exclusive. Any and all Purchaser’s dissenting, conflicting or complementing T&C shall be deemed part of the agreement only if and to the extent that we explicitly entered into their being effective. This reservation of approval shall apply without exception, including cases where, being aware of their T&C, we perform the delivery to the Purchaser without reservation.
(4) Declarations and notices of legal relevance by the Purchaser related to the agreement shall be made in writing, i. e. in written or textual form.
Art. 2 Effectiveness of Agreement
(1) Our estimates shall not be binding and may be subject to change.
(2) The order of the Goods placed by the Purchaser shall be deemed a binding offer to enter into an agreement. Unless arising otherwise from the order, we shall have the right to accept this offer of agreement within 14 days from the day we received it.
(3) The acceptance will be declared in writing.
Art. 3 Term of Delivery, Delay and Default in Delivery
(1) The term of delivery shall be agreed upon case by case, or it shall be indicated by us along with the acceptance of the order. The Purchaser shall reconfirm that term of delivery or shall promptly make known to the seller that they desire the delivery to be performed at a later time. The Purchaser shall be required to take delivery of the Goods at the time of delivery so determined.
(2) If the case is such that we are incapable of serving a binding term of delivery for reasons beyond our control (e. g. relevant service not available or required forwarding service not available), we shall promptly inform the Purchaser thereof and also notify them of the probable, new term of delivery. If the service is not available within the new term of delivery either, we shall have the right to rescind the agreement in whole or in part, in which case we shall promptly return to them any and all remunerations the Purchaser may have effected.
(3) A delay in delivery shall be deemed having occurred in the circumstances provided for in the law. Whatever these are, a reminder by the Purchaser shall be required. If we find ourselves in delay of delivery, the Purchaser is entitled to requesting liquidated damages in virtue of this delay. The standardised liquidation shall be 0.5% of the net purchase price (the delivery value) for every completed calendar week that we remain in default, not exceeding, however, a total of 5% of the delivery value of the Goods in delay of delivery. We reserve producing evidence that the Purchaser did not suffer any damage or damage substantially less serious than expressed by the aforementioned standardised liquidation.
(4) All rights granted to the Purchaser under Article 8 of these T&C and to us as in the law, in particular the release from the obligation to perform (e. g. due to the impossibility to perform within term and/or post-term or to the fact that it would be unreasonable to request performance), shall not be affected hereby.
Art. 4 Delivery, Transfer of Perils, Acceptance, Default of Acceptance
(1) The peril of accidental destruction and of accidental deterioration of the Goods shall transfer to the Purchaser at the moment of their physical transfer. The same holds when the Purchaser finds themselves in default of acceptance, deemed equivalent to the physical transfer.
(2) If the Purchaser finds themselves in default of acceptance, fails to perform an action of involvement or our delivery falls into delay for other reasons for which the Purchaser is accountable, we are entitled to requesting indemnity of the damage resulting therefrom, including additional expenses (e. g. cost of storage). To this end, we shall bill liquidated damages amounting to 0.5% of the delivery value per calendar week starting from the end of the term of delivery. The probable amount of the costs of storage incurred in the case of default of acceptance shall be quoted in our non-binding estimate.
(3) The possible production of evidence of a more serious damage and the claims we may raise under the provisions in the law (in particular indemnity of additional expenses, reasonable compensation, cancellation) shall not be affected hereby, while the standardised liquidation shall be set off against any further pecuniary claims. The Purchaser may reserve producing evidence that we did not suffer any damage or damage substantially less serious than expressed by the aforementioned standardised liquidation.
Art. 5 Payment Conditions
(1) As the term of payment indicated on the invoice expires, the Purchaser finds themselves in default of payment. For the period of the default, the purchase price shall bear interests at the respective current rate as provided for in the law. We reserve claiming damages in excess thereof invirtue of the default. In relation to professionals, our right to claim overdue interests for transactions with professionals shall not be affected hereby.
(2) The Purchaser shall be entitled to setting off or withholding payment only to the extent that their claim is not contested or has been established in court. In case of defects of the delivery, the counter-rights the Purchaser has, in particular under Article 7, paragraph 2, clause 2 of these T&C, shall not be affected hereby.
(3) If it becomes obvious after the agreement was concluded that our receiving the purchase price we are entitled to is in jeopardy due to a lack of solvency on the Purchaser’s part, we are entitled to refusing to perform and—as the case may be, after giving notice—to rescinding the agreement in accordance with the provisions in the law. In cases where the agreement covers the construction of an unjustified good (custom-built item), we may declare its rescission with immediate effect, while the provisions in the law on when giving notice can be dispensed with shall not be affected hereby.
Art. 6 Retention of Title
(1) Until such time as all our current and future receivables out of the sales agreement and the ongoing commercial relationship (hereinafter, the Secured Receivables) are paid to the full, we shall retain title to the sold Goods.
(2) The Goods to which we retain title shall neither be pledged to a third party nor transferred by way of security before the Secured Receivables were paid to the full. The Purchaser shall promptly notify us in writing when an application for insolvency proceedings is submitted or when and to the extent third parties seek to seize (e. g. by way of garnishment) the Goods that are our property.
(3) In case of behaviour contrary to the agreement on the Purchaser’s part, in particular of failure to pay the purchase price when due, we are entitled to rescinding the agreement and/or to requesting the restitution of the Goods in virtue of the retained title, as provided for in the law. The request of a restitution shall not be seen as the concurrent declaration of rescission; rather, we are entitled to request the restitution of the Goods and to reserve the right of a later rescission. Where the Purchaser does not pay the purchase price when due, we shall assert aforesaid rights only if we previously and without success reminded them of the payment, extending the term reasonably, or if such a reminder and term can be dispensed with under the provisions in the law.
(4) Inasmuch as we have explicitly reconfirmed it unto them in writing, the Purchaser is authorised to resell and/or process the Goods to which title is retained in the normal course of their business, in which case the following complementary provisions shall apply.
(a) The title as retained extends to the products come into existence through processing, blending or linking with our Goods and to their full value, we being regarded as their producer. Where after processing, blending or linking with a third party’s goods title is also retained by them, we acquire shared ownership at the ratio of the values as per invoice of the processed, blended or linked goods. Further thereto, all that applies to the Goods delivered with retained title, applies likewise to the products thus come into existence.
(b) The Purchaser as of now assigns unto us as a security all claims receivable they will acquire against third parties in virtue of the resale of the Goods or the products, to the full amount or to the amount of our possible share in the ownership as per the preceding paragraph. We accept said assignment. The Purchaser’s obligations as per para. 2 are in force also with respect to the assigned receivables.
(c) The Purchaser remains entitled, as are we, to recovering the receivables. We undertake not to recover such receivables as long as the Purchaser observes their obligations to pay to our benefit, no deterioration of their solvency is apparent, and we do not refer to the title we have retained by exercising one of the rights as per para. 3. If we do so, however, we may request that the Purchaser make the assigned receivables and the debtors known to us, provide all information required for recovery, hand over the relevant documents, and disclose the assignment unto the debtors (third parties). Furthermore, we are entitled in this case to revoking the Purchaser’s authorisation to resell and process the Goods to which title is retained.
(d) When the value that can be effected out of the securities exceeds our receivables by more than 10%, we will release, upon request by the Purchaser, those of the securities that we choose at our discretion.
Art. 7 Purchaser’s Claims in Case of Defects
(1) The claims the Purchaser may raise in case of material defects and defects of title (including erroneous and insufficient delivery) are those provided for in the law, unless set forth otherwise below. Whatever the exact circumstances, the special provisions in the law for the case of final deliveries of unprocessed goods to a consumer shall not be affected hereby, even when such consumer processes them (recourse against supplier). Claims out of recourse against supplier, however, shall be excluded where the defective Goods were processed by the Purchaser or another professional, for instance by way of incorporation into another product.
(2) The basis of our liability for defects shall above all be the understanding achieved in relation to the properties of the Goods. As an understanding relating to the properties of the Goods, shall be considered any and all product descriptions and information by the manufacturer that become the object of a single agreement or that had been publicly disclosed by us at the moment of entering into the agreement.
(3) To be valid, claims out of defect raised by the Purchaser presuppose that they complied with their obligations to examine and to complain as provided for in the law, inasmuch as such obligations exist. In the case of Goods meant to be incorporated into others or otherwise processed, such examination must be carried out no later than immediately prior to their being processed. If a defect becomes apparent at delivery, upon examination or at any later point in time, we shall promptly be notified thereof in writing. In any case, apparent defects shall be notified in writing within 10 working days from the delivery and defects not apparent during examination, within the same period from their being detected. If the Purchaser fails to examine and/or notify properly of any defect, our liability for the defect not notified at all, not in time or not properly is excluded in accordance with the provisions in the law.
(4) If the delivered item is defective, we may first choose to perform post-term by repairing the defect or to deliver an item without defects. Our right to refuse to perform post-term in cases for which the law so provides, shall not be affected hereby.
(5) We are entitled to subjecting a post-term performance which we owe to the Purchaser’s paying the purchase price when due. The Purchaser, however, is entitled to withholding a share in the purchase price reasonable with respect to the relevant defect.
(6) The Purchaser shall allow us the time and the opportunity required to perform post-term as we are owing it, in particular shall hand us the Goods giving rise to the complaint or allow us access to them for checking purposes. In the case of a replacement delivery, the Purchaser shall return the defective item as provided for in the law. The post-term performance does neither include the uninstallation of the defective item nor the reinstallation, unless we originally had the obligation to install it.
(7) The expenses required for checking and post-term performance, in particular expense for forwarding, travel, labour, and material as well as, possibly, for uninstallation and installation shall be borne or reimbursed by us based on the provisions set forth in the law if an actual defect existed, failing what we are entitled to requesting indemnity of the Purchaser in virtue of the cost incurred by the unjustified request to remedy a defect (expenses for checking and forwarding in particular), unless the Purchaser was not in a position to recognise the absence of a defect.
(8) Claims for damages or reimbursement of wasted expenses shall be raised by the Purchaser, including in cases of defects, only under what is provided for by Article 8, excluding any other circumstance.
(9) In cases where purchased used items are sold, the period of warranty as in the law shall be shortened to one year.
(10) Any and all warranty is excluded in cases of defects resulting from improper installation or use.
Art. 8 Liability in Other Cases
(1) Unless set forth otherwise by these T&C, including the provisions below, we assume liability in the event of a breach of contractual or non-contractual obligations as provided for in the law.
(2) Our liability as to damages, whatever the legal basis, extends, in line with the notion of liability in tort, to cases of intentional fault and gross negligence. In cases of simple negligence, our liability extends, with the exception of limitations of liability in the law, to:-
a) damage by harm to life, body or health;
b) damage by breach of a fundamental contractual obligation, in which case our liability is limited to indemnifying to the extent of the foreseeable, typically occurring damage.
(3) The limitation of liability as set forth by para. 2 shall also apply to cases of breach of duty by or to the benefit of those persons for whose fault we are accountable pursuant to the provisions in the law. It shall not apply in cases where we maliciously concealed a defect or endorsed a guarantee of the properties of the Goods and not apply either as related to claims the Purchaser may raise under the laws on product liability.
Art. 9 Planning and Design Services, Copyright
(1) Inasmuch as a dedicated planning and design order was placed, the provisions in the planning and design order shall in addition be applicable to the planning and design services provided by us.
(2) The copyright covering the planning and design documents is with us: product drawings, engineering details, computations, estimates, and similar documents, whether made out for remuneration or free of charge. The use or transfer of said documents, in whatever form or mode they were received, is acceptable only in the course of performing the business relationship between us.
Art. 10 Instruction on revocation
(1) On principle, consumers have the right as in the law to revoke with the effect of cancellation any transaction entered into as a distance sale or sale effected outside of the seller’s premises, on which we give the relevant instructions below as required by the law. Any exceptions from this right to revoke are provided for in para. 2. Para. 3 offers a standard revocation form.
Right to revoke
Within fourteen days, you have the right to revoke this agreement with the effect of cancellation without being required to give reasons.
As to delivery of goods:
The term of revocation is fourteen days from the day you or a third party identified by you, who is not the forwarder, has had or took possession of the goods.
As to provision of services:
The term of revocation is fourteen days from the day the agreement was entered into.
To exercise your right to revoke, you will have to tell us,
HIT Hinrichs Innovation + Technik GmbH, Kleine Str. 2, 25795 Weddingstedt, Germany; Ph. + 49 (0) 481 68 37 63 0, Fax + 49 (0) 481 68 37 63 10, E-mail email@example.com
that you have decided to revoke this agreement with the effect of cancellation, using an unambiguous declaration to this effect (e. g. a letter sent by post, a telefax or an E-mail). You can use the standard revocation form hereinafter to this end, which, however, is not compulsory. For the term of revocation to be deemed not having expired, it is sufficient that you send the message telling us that you are exercising your right to revoke before this term has expired.
Consequences of the revocation
When you revoke this agreement with the effect of cancellation, we will have to return to you promptly and within a maximum of fourteen days from the day your message notifying us of the revocation of this agreement was received, any and all payments you made to us, including expenses for delivery (with the exception, however, of such expenses as may have been incurred as a consequence of your having opted for a kind of delivery other than the cost-aware standard delivery we offered). For this refund, we will choose the same payment method you chose for the initial transaction, unless expressly agreed upon otherwise between us, and in no event fees in relation to this refund will be charged to you. We will be entitled to refusing the refund until we received the returned goods or until you produce evidence that you have sent the goods to be returned, whatever occurs first. You will have to return the goods to us promptly and within a maximum of fourteen days from the day you notify us of the revocation of this agreement, by forwarding or handing them over. This term shall be deemed not having expired if you send the goods before this fourteen-day term has expired. You will bear the direct cost of the return of the goods. The expenses for returning the goods correspond to those accrued in virtue of the initial delivery. The expenses thus accruing can be seen in the invoice. You will have to compensate for any deterioration of the goods only if such deterioration were the consequence of handling the goods in a manner not required for checking their properties, characteristics, and functionality. For services already provided prior to the right to revoke being exercised, you will have to pay a reasonable amount, provided the consumer expressly declared that the provision of the service should begin.
(2) The right to revoke can be exercised exclusively by a consumer. The right to revoke cannot be exercised in relation to agreements for the delivery of goods that are not prefabricated and to the manufacture of which individual choices or determinations by the consumer are applicable (e. g. automated feed dispensers, selection gates).
(3) Pursuant to the provisions in the law, we inform you about the standard revocation form as follows.
Standard Revocation Form
(If you want to revoke the agreement with the effect of cancellation, please fill in this form and return it to us.)
To: HIT Hinrichs Innovation + Technik GmbH, Kleine Str. 2, 25795 Weddingstedt, Germany; Fax + 49 (0) 481 68 37 63 10, E-mail firstname.lastname@example.org
— I/We (*) herewith revoke with the effect of cancellation the agreement I/we (*) entered into with a view to being delivered the following goods/being provided the following services (*):
— Ordered on/Received on (*)
— Consumer’s name
— Consumer’s address
— Consumer’s signature (if message on paper)
(*) Cross out inapplicable option.
Art. 11 Applicable Law, Place of Jurisdiction, Severability Clause
(1) To these T&C and the contractual relationship between the Purchaser and us, the laws and ordinances of the Federal Republic of Germany shall apply, excluding harmonised international law and in particular the U.N. Convention on Contracts for the International Sale of Goods.
(2) The place of jurisdiction for any and all disputes arising directly or indirectly from the contractual relationship shall be our headquarters in Weddingstedt, Germany. Any provisions in the law on limitations as to determining the applicable law and the compulsory application of the provisions in particular of that State in which the Purchaser who is a consumer has taken up residence, shall not be affected hereby.
(3) This agreement shall continue to be binding to the extent of its remaining provisions in the case that some of its provisions were found to be legally unenforceable. Instead of such unenforceable provisions the provisions in the law, if any, shall be applicable. Inasmuch as this would result in unreasonable severity for one party hereto, this agreement as a whole would be deemed ineffective.