General Terms and Conditions of Business and Delivery for use with entrepreneurs

§ 1 Scope

(1) All deliveries and other services are subject exclusively to the following terms and conditions of sale and delivery; they shall only apply if the purchaser is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
(2) Deviating, conflicting or supplementary General Terms and Conditions of the purchaser shall only become part of the contract if and to the extent that the seller has expressly agreed to their application. This requirement of consent shall apply in any case, for example, even if the seller carries out the delivery to the purchaser without reservation in the knowledge of the purchaser’s General Terms and Conditions.
(3) Individual agreements made with the purchaser in specific cases (including collateral agreements, additions and amendments) shall take precedence over these General Terms and Conditions.
(4) References to the application of statutory provisions are for clarification purposes only. Even without such clarification, they shall apply unless they are amended or expressly excluded in these General Terms and Conditions.

§ 2 Conclusion of contract and information on the subject matter of the contract

(1) Contract offers from the seller are subject to change and non-binding. This also applies if catalogues, technical documentation or other product descriptions or documents – also in electronic form – have been handed over to the purchaser. The seller reserves the rights of ownership and copyright to such documents. The client may neither make these items accessible to third parties as such nor with regard to their content, nor make them known, nor use or reproduce them himself or through third parties without the express consent of the seller. At the seller’s request, he must return these items completely to the seller and destroy any copies 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. The same applies to models, tools and other documents and aids that the purchaser has received from the seller.
(2) The purchaser’s order of the goods shall be deemed a binding contractual offer which may be accepted by the seller by means of an order confirmation or by delivery of the goods to the purchaser.
(3) The documents underlying the offer or the order confirmation, such as illustrations, drawings, dimensions and weight specifications, are generally only to be understood as approximate values, unless they are expressly designated as binding.
(4) Information provided by the seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed characteristics, but
descriptions or markings of the delivery or service. Deviations customary in the trade and deviations that occur due to legal regulations or
technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided that they do not impair the usability for the contractually intended purpose.

§ 3 Prices, terms of payment and default of payment

(1) The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, the statutory value added tax, in the case of export deliveries customs duties as well as fees and other public charges.
(2) If more than 4 months elapse between the conclusion of the contract and delivery without a delay in delivery on the part of the seller for which the seller is responsible, the seller may increase the price appropriately, taking into account any increases in material, wage and other ancillary costs to be borne by the seller. If the purchase price increases by more than 40%, the purchaser is entitled to withdraw from the contract.
(3) Invoice amounts are payable within ten days of receipt of the invoice without any deduction, unless otherwise agreed in writing. The place of performance for the purchase price payment is the registered office of the seller. Cheques are only deemed payment after encashment.
(4) The purchaser shall be in default upon expiry of the aforementioned payment period. During the period of default, interest shall be charged on the purchase price at the applicable default interest rate; this is currently 9 percentage points above the respective base interest rate. In addition, the default damage lump sum of 40 euros shall be incurred. The seller reserves the right to assert further damages caused by default, crediting the default damage lump sum.
(5) The seller is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, circumstances become known to him which are likely to significantly reduce the creditworthiness of the client and which jeopardise the payment of the seller’s outstanding claims by the client from the respective contractual relationship (including from other individual orders for which the same framework agreement applies).

§ 4 Offsetting and right of retention

Offsetting and the assertion of a right of retention on the part of the purchaser are excluded, unless the counterclaim on which the offsetting or the right of retention is based is undisputed or has been legally established, provided that no consumer is involved in the legal transaction and there is no disproportionate interference with the synallagmatic relationship of the contracting parties. In the event of defects in the delivery, the purchaser’s counter-rights, in particular in accordance with § 8 of these General Terms and Conditions, shall remain unaffected.

§ 5 Regulations on the delivery period and default of delivery

(1) The indication of a delivery date is made to the best of our judgement when the order is accepted. The delivery date is only binding if it has been expressly agreed as binding.
(2) The delivery period shall be extended appropriately if the purchaser delays or fails to perform necessary or agreed acts of cooperation on his part. Changes to the delivered goods initiated by the purchaser shall also lead to an appropriate extension of the delivery period.
(3) If the seller fails to meet binding delivery deadlines for reasons for which he is not responsible, he shall inform the purchaser of this without delay and at the same time notify the estimated new delivery deadline. If the service is also not available within the new delivery period, the seller is entitled to withdraw from the contract in whole or in part; any consideration already provided by the purchaser shall be reimbursed immediately. A case of non-availability of the service shall be deemed to exist in particular in the event of non-timely delivery by suppliers if neither the seller nor the supplier is at fault or the seller is not obliged to procure the goods in individual cases.
(4) The occurrence of default in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder from the purchaser is required.
(5) The rights of the purchaser according to § 9 of these General Terms and Conditions and the legal rights of the seller, in particular in the event of an exclusion of the obligation to perform, especially in the event of impossibility or unreasonableness of the service, shall remain unaffected.

§ 6 Delivery, transfer of risk, acceptance and default of acceptance

(1) Delivery shall be ex works in Steinbach-Hallenberg, which is also the place of performance. At the request and expense of the purchaser, the goods will be shipped to another destination. Unless the parties agree otherwise here, the seller is entitled to determine the type of shipment, in particular the transport company, the shipping route and the packaging alone.
(2) The seller is entitled to make partial deliveries to a reasonable extent.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser at the latest upon handover. In the case of sale by dispatch, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarding agent, the carrier or other dispatcher upon delivery of the goods.
(4) If the purchaser is in default of acceptance, fails to perform an act of cooperation or if the delivery is delayed for other reasons for which the purchaser is responsible, the seller is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In addition, the seller shall be entitled to further statutory claims.
(5) The shipment will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at his expense.
(6) If acceptance has been agreed, this shall be the decisive point in time for the transfer of risk. It is equivalent to the handover or acceptance if the purchaser is in default of acceptance. It shall be deemed accepted, as far as legally permissible; otherwise, the statutory provisions for the law on contracts for work and services shall apply accordingly if
• the delivery and, if the seller also owes the installation, the installation is completed,
• the seller has notified the client of this with reference to the acceptance fiction of the statutory regulation and has requested him to accept the goods,
• twelve working days have passed since delivery or installation or the client has started to use the object of purchase (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and
• the client has failed to accept the goods within this period for a reason other than a defect notified to the seller which makes the use of the object of purchase impossible or significantly impairs it.

§ 7 Agreement on the retention of title

(1) The seller reserves title to the purchased and delivered goods until full payment of all present and future claims arising from the purchase contract and an ongoing business relationship.
(2) The purchaser is not entitled to pledge the goods subject to retention of title or to assign them as security, but is entitled to resell the goods subject to retention of title in the ordinary course of business. The purchaser hereby assigns to the seller as security the claims arising from this against his business partners. The seller hereby accepts the assignment. The purchaser is revocably authorised to collect the claims assigned to the seller for the seller’s account in his own name.
(3) In the event of breach of contract by the purchaser, in particular in the event of non-payment of the due purchase price, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the purchaser does not pay the purchase price, the seller may only assert these rights if he has previously set the purchaser a reasonable deadline for payment without success or such a deadline is dispensable in accordance with the statutory provisions.
(4) The retention of title extends to the products resulting from processing, mixing, blending or combining the goods to their full value. If the ownership of third parties remains in place during processing, mixing or combining with goods of third parties, the seller shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(5) If the value of all securities existing for the seller exceeds the existing claims by more than 10 %, the seller shall release securities of his choice at the purchaser’s request.

§ 8 Claims in case of defects

(1) The purchaser’s claims for defects presuppose that he has complied with his statutory obligations to examine the goods and give notice of defects (§ 377 HGB [German Commercial Code]). If a defect becomes apparent during the examination or later, the purchaser must notify the seller of a written notice of defects with regard to obvious defects or other defects that were recognisable during an immediate, careful examination within seven working days of delivery of the object of delivery. At the seller’s request, the rejected object of delivery must be returned to the seller. In the event of a justified notice of defects, the seller shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the object of delivery is located at a place other than the place of intended use. Claims for transport costs within the meaning of § 439 No. 2 BGB for the purpose of the examination to determine whether a defect exists are excluded, provided that no consumer is involved in the legal transaction.
(2) If the delivered item is defective, the purchaser may demand subsequent performance in the form of rectification of the defect or delivery of a replacement. The seller may refuse the type of subsequent performance chosen by the purchaser in accordance with § 439 para. 3 BGB. If the purchaser fails to decide on the form of subsequent performance, the right of choice shall pass to the seller upon expiry of a 14-day period. The seller may make the owed subsequent performance dependent on the purchaser paying the due purchase price. However, the purchaser is entitled to retain a proportionately reasonable part of the purchase price.
(3) The purchaser must give the seller the time and opportunity required for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the purchaser must return the defective item to the seller in accordance with the statutory provisions. The subsequent performance does not include the removal of the defective item or the renewed installation if the seller was not originally obliged to install it.
(4) The seller shall bear the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, unless the request for removal of the defect proves to be unjustified. In this case, the costs shall be reimbursed by the purchaser. Insofar as this is legally permissible, the purchaser is obliged to give notice of defects by telephone or in writing in the first instance and not to return the object of purchase immediately, so that the seller is enabled to carry out a telephone investigation of the causes and, if necessary, to assign an RMA number in order to avoid shipping costs. If the object(s) of purchase is/are sent immediately, the seller is entitled to charge an inspection fee of €90.00 plus value added tax at the respective statutory rate, whereby the purchaser is permitted to prove that no damage or less damage has been incurred. The application of § 478 BGB remains unaffected. If, after agreed return of the rejected object of purchase, it turns out that there is no defect, the seller is also entitled to charge an inspection fee of €90.00 plus value added tax at the respective statutory rate, whereby the purchaser is permitted to prove that no damage or less damage has been incurred. If the seller proves that the inspection effort was higher, he is entitled to charge the higher effort in
to invoice, whereby an hourly rate of €90.00 plus value added tax at the statutory rate is taken as a basis.
(5) A delivery of used items agreed with the client in individual cases is made under exclusion of any warranty for defects. This exclusion of warranty does not apply in cases of intent, gross negligence and fraudulent concealment of a defect and in cases of culpably caused injury to life, body or health, as well as for claims under the Product Liability Act.

§ 9 Other liability

1) The seller’s liability for damages is limited to intent and gross negligence. In the event of simple negligence, the seller shall only be liable for damages resulting from injury to life, body or health and for damages resulting from the breach of a material contractual obligation. An obligation is material if its fulfilment is essential for the proper execution of the contract and the contracting party regularly relies and may rely on its compliance. In this case, liability shall be limited to compensation for the foreseeable, typically occurring damage.
(2) The limitations of liability resulting from paragraph 1 shall not apply if the seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. This shall also apply to the purchaser’s claims under the Product Liability Act.
(3) The purchaser may only withdraw from or terminate the contract due to a breach of duty that does not constitute a defect if the seller is responsible for this.

§ 10 Place of jurisdiction agreement, choice of law and severability clause

(1) The law of the Federal Republic of Germany shall apply exclusively to the inclusion and interpretation of these conditions as well as to the conclusion and interpretation of the legal transactions with the purchaser himself. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
(2) The place of jurisdiction shall be the court responsible for the seller’s registered office, provided that the purchaser is a merchant. The seller is also entitled to bring an action before a court which has jurisdiction for the registered office or a branch of the purchaser.
(3) The invalidity of individual provisions of this contract or its components shall not affect the validity of the remaining provisions. Within the bounds of what is reasonable, the contracting parties are obliged in good faith to replace an invalid provision with an effective regulation that corresponds to its economic success, provided that this does not bring about any essential modification of the contract content; the same applies if a matter requiring regulation is not expressly regulated.

Note:
The client acknowledges that the seller stores data from the contractual relationship in accordance with the statutory provisions for the purpose of data processing and
reserves the right to transmit the data to third parties (e.g. insurance companies, shipping service providers) to the extent necessary for the fulfillment of the contract.
Further information on data protection can be found at https://www.hematec.com/datenschutz.