Sales and Delivery Terms and Conditions of HEB-Hydraulik-Elementebau GmbH, Freiburg im Breisgau; Status 11/2005

1.    General remarks, deviating terms and conditions

1.1    Our deliveries and services are rendered solely on the basis of the following terms and conditions, which apply for the entire duration of the business relationship, as well as on the basis of any special terms and conditions of which the purchaser is made aware of separately.

1.2    The general terms and conditions of business of the purchaser only apply if we give our explicit written confirmation to this effect. Neither the omission to express an explicit objection, nor the execution of delivery or rendering of service constitute a tacit acceptance of third-party, deviating terms and conditions of business.

2.    Offer and confirmation of order, offer documentation

2.1    Our offer is always without obligation insofar as nothing to the contrary has been mentioned in the confirmation of order. A contract is only formed upon our written confirmation in accordance with its contents or via delivery. Verbal additions, alterations or subsidiary agreements require our written confirmation to become effective.

2.2    We reserve rights of ownership and copyright on illustrations, drawings and other documentation – with the exception of advertising material – that are handed over to the purchaser; they must be returned on our request. They are not permitted to be used for purposes other than those intended by us, reproduced or made available to third parties. This applies in particular to written documentation which is marked as “confidential”; the purchaser must obtain our express written consent before passing these documents to third parties.

2.3    All information provided in catalogues, drawings and other documents is non-binding. Applicational consultation in word and writing as well as proposals, calculations, project planning etc. are merely intended to demonstrate to the purchaser the best possible use. They do not release the purchaser from his duty to conduct his own examination in order to convince himself of the suitability of our products for the purpose he intends to put them.

2.4    We reserve the right to undertake changes to the design and shape of the subject matter of the contract as a result of technical developments without prior notice.

2.5    Our written confirmation of order is the authoritative text for the content and scope of the delivery contract. The transmission per remote data transfer requires the written form.

3.    Prices and terms and conditions of payment

3.1    Our prices are to be understood in EUROs ex works/warehouse. The statutory value added tax at the currently prevailing rate as well as freight, packing and other ancillary costs are charged for separately.

3.2    We reserve the right to change our prices accordingly if decreases or increases in costs occur following conclusion of the contract, in particular on account of collective bargaining agreements or changes in material prices. These will be evidenced to the purchaser at his request.

3.3.    If nothing to the contrary is agreed, payment is to be effected within 14 days at 2% cash discount or within 30 days net. The cash discount is not applicable if the purchaser is in payment arrears from other contracts.

3.4.    Interest on arrears is charged at a rate of 8% p.a. above the base lending rate. If the purchaser is the user, interest on arrears is charged at a rate of 5% p.a. above the base lending rate. This does not exclude the assertion of a further claim.
    The purchaser is only entitled to rights of set off if his counter claims have legal force or are accepted by us. Moreover, the purchaser is empowered to exercise a right of retention insofar as his counter claim rests on the same contractual relationship.
    If several invoices or monetary claims are outstanding, we are entitled to determine the sequence of repayment despite any deviating stipulation on the part of the purchaser.
    If, after conclusion of contract, it becomes known to us that the purchaser has entered into a disorderly financial situation, which, if standard banking standards are applied, gives grounds to doubt the solvency of the purchaser, or if the purchaser is in arrears with agreed periods of payment, we are entitled, after expiry of an appropriate grace period, to perform outstanding deliveries against cash in advance or to make them dependent on the provision of a security.

4.    Delivery, transfer of risk

4.1    The observation of agreed times of deliveries assumes that the preconditions for the punctual receipt of all documentation to be provided by the purchaser and, if applicable, any required approvals and clearances, in particular of plans, as well as the observation of the agreed terms of payments and other obligations on the part of the purchaser are met. If these preconditions are not fulfilled punctually, the periods are appropriately extended; this does not apply if we are responsible for the delays.

4.2    Force majeure, industrial disputes, unrest, government measures, non-appearance of deliveries from our suppliers and other unforeseeable, unavoidable and serious events release the contractual partners from performance obligations for the duration of the interruption and to the extent of their effect. This also applies if these events occur at a time when the affected contractual partner is in default. Within what can be reasonably expected, the contractual partners are obliged to immediately give the required information and to adapt their obligations to the altered circumstances in trust and good faith.

4.3    Claims for damages on the part of the purchaser made against us due to delay in performance are in all cases of delayed delivery, also after the expiry of a period of grace for delivery we have been given, excluded. This does not apply in cases of intent or gross negligence, or if there exists compulsory liability for the injury to life, body and health; this does not entail a shift in the burden of proof to the disadvantage of the purchaser. The statutory right of recession by the purchaser remains unaffected. The purchaser can rescind the contract as part of the statutory provisions only insofar as we are responsible for the delay in delivery.

4.4    Part deliveries are permissible. If a part delivery is delayed, the purchaser cannot assert any rights derived from this on account of the remaining part quantities, unless he has no demonstrable interest in the part performance.

4.5    Our deliveries are effected ex works/warehouse insofar as nothing is agreed to the contrary in individual cases. The risk passes to the purchaser with the advice of despatch readiness, at the latest, when the goods leave the factory/warehouse. This also applies when we carry out the transport. Transport insurance is only effected after special agreement and at the purchaser’s expense.

4.6    Non-returnable packing is not accepted back. The purchaser is to dispose of this at his own expense.

4.7    If the purchaser does not accept the delivery, we are entitled to set him an appropriate period of grace after the expiry of which we can dispose of the delivery as we deem fit as well as supply the purchaser anew at a later date after an appropriate, extended period. Should our prices have been increased during the interim, the purchaser is obliged to pay the higher price.

5.    Self-supply   

We are entitled to postpone and/or cancel delivery obligations which are affected by the failure of our upstream supplier to undertake correct or punctual self-delivery for which we are not responsible.

6.    Liability for defects

6.1    The purchaser is to immediately examine the good upon delivery and to report any defects to us immediately in writing. Non-apparent defects are to be reported in writing immediately upon their discovery.

6.2    Until the complaint has been resolved the good in question is not permitted to be further processed, otherwise the manufacturer forfeits his rights. We are given opportunity to verify the complaint in situ. Moreover, the goods in question is to be sent to us on our request.

6.3    Samples of the good that have been given to the purchaser are guide or reference samples. Their handing-over still entitles us to deliver according to standard tolerances.

6.4    In the event of complaint we will rectify the defect in a manner of our choosing or deliver a defect-free good insofar as the defect was present at the time the risk was transferred. If the repair fails, the purchaser can – without prejudicing any claims to damages pursuant to Section 8 – reduce the purchase price or withdraw from the contract. Claims on the part of the purchaser on account of necessary expenditure for the purposes of repair, in particular transport, travel, labour and material expenses, are excluded insofar as these expenses increase because the subject of the delivery has been subsequently brought to a location other than the site of the purchaser, unless this relocation complies with use in accordance with provisions.

6.5    Legal claims under a right of recourse on the part of the purchaser pursuant to sections 478, 479 of the civil code exist only insofar as the purchaser has made no agreements that go beyond the statutory warranty claims with his purchaser. Furthermore, claims under right of recourse on the part of the purchaser against us exist only up to the value of the purchase price.

6.6    Warranty claims do not exist when the error is traceable to the violation of operating instructions and installation regulations or to unsuitable or improper use, incorrect or negligent treatment and natural wear as well as to interventions in the delivery object undertaken by the purchaser or by third parties.

6.7    Warranty claims expire after 12 months, beginning from the transfer of risk.

6.8    Also the defective parts are to be made immediately available to us on demand and at our cost.

7.    Retention of title

7.1    A delivered good remains our property (reserved good) until all outstanding claims derived from business relationships between the purchaser and us have been met. Should insolvency proceedings be initiated concerning the assets of the purchaser, we reserve the right to rescind. If the purchaser violates duties, in particular, is in payment arrears, we are entitled to rescission and to take back the good; the purchaser is obliged to surrender the good. The taking back or assertion of a retention of title requires no recession on our part; these actions or a seizure of the reserved good do not constitute a repudiation of contract by us, unless we have expressly declared this.

7.2    The purchaser is obliged to store and mark the reserved good separately. The purchaser is obliged to take care of the reserved good; in particular, he is obliged to insure it for its new value at his own expense against damage sustained by fire, water and theft. Should maintenance and inspection work be required, the purchaser is to carry these out in time and at his own expense.

7.3    The purchaser is not permitted to either pawn the reserved good or to transfer ownership as security. In the event of seizure, sequestration or other dispositions or interventions by third parties the purchaser is to notify us immediately.

7.4    The purchaser is entitled to sell on the reserved good in the course of normal business activity; however, in this event he already now assigns to us all monetary claims up to the total of the final invoice amount of our monetary claim arising out of the resale to purchasers or third parties, and does this irrespective of whether the reserved good has been sold before or after processing. The purchaser still remains empowered to recover this monetary claim after the act of assignment. This does not affect our entitlement to collect the debt ourselves. We undertake not to collect the claim as long as the purchaser fulfils his payment obligations from the proceeds collected, is not in arrears, has filed no application for the opening of insolvency proceedings or there is no suspension of payments. In all these events we can demand that the purchaser notifies us of the assigned claims and their debtors, provides all information necessary for collection, surrenders all related documents and informs the debtors (third parties) of the assignment.

7.5    The purchaser undertakes processing or transformation of the reserved good without any obligations arising out of this for us. If the purchaser links, mixes, blends or processes our reserved good we acquire the joint ownership of the new object proportionate to the value of the reserved good (invoice amount) in relationship to the other processed, blended, mixed or linked objects at the time of processing, blending, mixing or linking. Moreover, the same applies to the object arising out of the processing or linking as for the reserved good delivered under reservation. If the mixing or blending is undertaken in such a fashion that the object of the purchaser is to be deemed as the main object, it is agreed that the purchaser transfers a pro rata joint ownership. The purchaser safeguards the resulting sole ownership or joint ownership on our behalf.

7.6    If the value of the securities we have been given exceeds our claims in total by more than 20 %, we are obliged, if the purchaser demands it, to release the excess securities of our choice.

7.7    Insofar as and to the extent that the registration and/or fulfilment of other requirements constitute a precondition for the legal force of the right of retention of ownership, the purchaser is obliged to immediately undertake all actions necessary to realise this and to make all required notifications. If and insofar as the relevant legal system does not permit a retention of title, the purchaser is to provide us with other appropriate securities by utilising commercial credit.

8.    Other claims for damages

8.1    Claims for damages made by the purchaser for whatever legal reason, in particular on account of violations of duties arising out of the contractual obligation or out of impermissible action, are excluded.

8.2    This does not apply insofar as a statutorily compulsory liability exists, for example, in accordance with the product liability act, in cases of intent, gross negligence, on account of injury to life, body or health, on account of infringement of essential contractual duties. However, the claim for damages deriving from the infringement of essential contractual duties is limited to damage that is typical for contracts and foreseeable, insofar as no intent or gross negligence exists or liability is given on account of injury to life, body or health. The aforementioned provision does not entail a shift in the burden of proof to the disadvantage of the purchaser.

8.3    Insofar as Section 8 entitles the purchaser to file claims for damages, these become statute-barred with the expiry of the limitation period applicable to material defect claims pursuant to 6.7 insofar as no conflicting compulsory statutory regulations exist.

8.4    Insofar as damages liability with respect to us is excluded or limited, this also applies to personal liability of our employees, representatives and vicarious agents.

9.    Third party rights

9.1    Insofar as a third party claims justified damages from the purchaser on account of the infringement of commercial protection law or copyright law (protective rights) arising out of products supplied and used contractually by us, our liability towards the purchaser as follows:

9.1.1    We will exercise the choice of obtaining a right of use at our own expense, changing the product so that protection law is not infringed or exchanging the product. If this is not possible under appropriate conditions we are to take back the product and reimburse the purchase price.

9.1.2    Our aforementioned obligations only exist when the purchaser informs us immediately in writing of the claims asserted by the third party, does not recognise an infringement and we are reserved all rights to take defensive measures and settlement negotiations. If the purchaser suspends use of the product to minimise loss or other important reasons, he is obliged to make the third part aware that the suspension does not constitute acknowledgement of an infringement of a right of protection.

9.2    Claims raised by the purchaser are excluded insofar as he is responsible for the infringement of protective right, or if the protective right infringements have been caused by special stipulations on the part of the purchaser, or by the product being used in a way that we could not have foreseen, or by the purchaser altering the product, or using it in combination with products that we have not supplied.

9.3    In the cases mentioned in Point 9.2 the purchaser exempts us from third party claims.

9.4    Claims against us that go beyond this are excluded; however, Point 8 (Other claims for damages) remains equally unaffected as the right of the purchaser to rescind the contract.

9.5    In the event of other deficiencies in law, the provisions pursuant to Section 6 apply correspondingly.

10.    Manufacturing equipment, tools, moulds

10.1    Insofar as the purchaser makes manufacturing equipment (e.g. tools or moulds or similar) available to us, these are to be sent to us free of charge. We only assume liability for their loss, deterioration or incomplete return and resulting damage in the event of gross negligence or intent. This does not apply if a statutorily compulsory liability exists.

10.2    If manufacturing equipment is manufactured or procured by us on behalf of the purchaser, we will charge for these separately on a pro rata basis; this also applies to progressive dies in the case of cast parts. If a tool is not utilised the purchaser assumes the uncovered costs as well as the otherwise type-related equipment. Costs for patterns are borne in full by the purchaser. The manufacturing equipment remains our property. We are not obliged to surrender it to the purchaser. This also applies to progressive dies.

10.3    The drawings and documents as well as our proposals for the advantageous design and manufacture of the parts that we have handed to the purchaser are not permitted to be handed on to third parties and can be demanded back by us at any time.

11.    Place of performance, place of jurisdiction, applicable law

11.1    The place of performance for our obligations and payment obligations of the purchaser is Freiburg im Breisgau.

11.2    Place of jurisdiction is Freiburg in Breisgau. We are also empowered to bring legal proceedings against the purchaser at his general place of jurisdiction.

11.3    In all legal relationships between the purchaser and ourselves, only the substantive law of the Federal Republic of Germany, excluding the conflict of laws provisions, applies; the UN Convention on the International Sale of Goods (CISG) is not applicable. The delivery clauses are to be interpreted in accordance with the INCOTERMS in the respectively prevailing version.

12.    Partial invalidity   

The invalidity of any individual provision shall not affect any part of the remaining contract.

13.    Data storage   

Data for the purposes of the business transaction is stored and may be imparted to third parties as part of the order process. All personal information shall be treated in confidence in accordance with the provisions of the Federal Data Protection Act.