GTC - General Conditions of Sale
Last Revised: 10 December 2006
Any and all business transactions with our clients (hereafter also referred to as the "Client") shall be governed by the following Conditions of Sale. Any of the Client's conditions of purchase that differ from these Conditions of Sale shall neither be recognized, nor shall they become elements of the contract, even if they should have been confirmed without proviso, and even if the order should have been fulfilled. Like any other deviating agreement, such conditions rather require our confirmation in writing so as to take effect between the parties.
These Conditions shall exclusively apply in respect of entrepreneurs (Unternehmer) as defined in secs. 310 para. 1, 14 of the German Civil Code (Bürgerliches Gesetzbuch - BGB -).
2. Scope of Delivery, Documentation
The scope of delivery shall be determined by the settlement as made by the parties unanimously and in writing. In the absence of such settlement, our written confirmation of order, or, should such confirmation not have been issued, the Client's written order shall be decisive.
Deliveries shall be executed ex factory, or ex sales office, depending on the circumstances of our operations. We are entitled to execute partial deliveries, unless this should have been expressly excluded, and such exclusion confirmed by us, at the time that the order was placed.
We reserve and any all property rights, copyrights and rights of use in respect of price quotes, drawings and similar information, whether embodied or not, including those in electronic form. Any and all specifications and illustrations contained in printed matters issued by us shall apply under the proviso of changes in technical execution, in the sense of progress in technical development.
Our offers and prices are subject to change without notice. Orders shall be calculated on the basis of the price lists and discounts as applying on the date of the acceptance of the order. If no other agreement has been made in writing, all our prices shall apply ex factory, and before the addition of V.A.T. as applicable on the date of issuance of our invoice, and of shipping, packaging and insurance costs.
4. Time of Delivery, Delays in Delivery
We shall observe the delivery deadline under the proviso that we will have ourselves received, in due time and condition, the deliveries necessary to fulfil the order.
The delivery deadline shall be deemed to have been observed if the delivery item will have left our factory or sales depot, or will have been advised as ready for despatch, until the expiry of such deadline. To the extent that an acceptance inspection (Abnahme) has to be made, the date of such inspection, or, in the absence of an inspection, the expiry without avail of an acceptance deadline fixed to the Client, shall be decisive.
If shipping or acceptance of the delivery items should be delayed for any reason within the Client's responsability (Vertretenmüssen), the Client shall compensate us for any damages and additional expenses caused by the delay.
If the failure to observe the time of delivery should be caused by force majeure, labour dispute or any other event outside of our sphere of influence, the delivery deadline shall be adequately extended. We shall notify the Client as soon as possible of the beginning and the end of such circumstances.
If we are in default of delivery, and if this causes any damage to the Client, the Client shall be entitled to claim a lump-sum compensation for delay. Said compensation shall amount to 0.5% for any full week, its aggregate sum shall however not exceed 5%, of the value of such part of the entire delivery as will not be able to be used on time or in conformity with the contract, because of the delay. We reserve the right of proof that a smaller damage was actually caused.
If the delivery or, as the case may be, the acceptance of the goods/services is delayed for reasons within the responsibility of the Customer, it can be charged, starting one month from notification of the readiness for delivery or acceptance, for the costs incurred as a result of the delay, but in the case of storage on site by HOMA at least 0.5% of the invoice amount per month. The Customer has the right to furnish evidence that damage was not caused by the delay or is significantly lower than the lump sum.
5. Withdrawal of Seller
Above and beyond the cases provided by statutory law, we shall also have the right to withdraw from the contract if we or our suppliers are subject to unforeseen events outside of our sphere of will and influence (e.g., force majeure, strike, disruption of operations, delay in the supply of essential raw or accessory materials), and if such events seriously challenge the fulfilment in due time of the entire contract or of a part thereof.
6. Withdrawal of Client
Above and beyond the cases provided by statutory law, the Client shall be entitled to withdraw from the contract without prior appointment of a date if the entire performance becomes terminally impossible for us prior to the passing of the risk. The Client shall have the same right if, in respect of an order, the execution of a part of the delivery becomes impossible and if the Client has a justified interest in refusing the partial delivery. Should this not be the case, the Client shall have to make payment of such part of the contract price as corresponds to the partial delivery.
If the Client, for reasons within his own responsibility, withdraws from a contract which has taken due effect, the Client shall be liable to pay to us a lump-sum compensation in the amount of 5% of the value of the order before V.A.T.; we shall be entitled to claim compensation for the damage actually caused instead of the lump-sum compensation.
7. Despatch and Passing of the Risk
Packaging shall be in accordance with the criteria as customary in the branch and trade. Boxes made of cardboard or other materials, or other packaging as customary at the time of delivery, shall be charged at cost price. Boxes, pallets and crate packing shall be credited at 50% of the charged value if returned immediately and free of shipping costs.
To the extent that no specific shipping instructions have been given by the Client, we shall choose the most advantageous shipping method as identified according to our best judgment. Shipping shall be at the Client's expenses and risk.
The risk of destruction by accident, or of deterioration, shall pass to the Client at the moment in which the delivery item has left the factory, and this shall also apply if partial deliveries have been executed or if we have taken on other performances, such as shipping costs or on-premises delivery and assembly. to the extent that an acceptance inspection (Abnahme) has to take place, the passing of the risk shall be determined by the date agreed upon for such inspection.
If the despatch or acceptance, respectively, should fail to intervene because of circumstances outside of our responsibility (Vertretenmüssen), the risk will pass upon the Client on the date on which the Client was advised that the items were ready for despatch or acceptance. We shall conclude at the Client's expense such insurances as the Client demands.
Returns to which the Client is not entitled under the contract, including these Conditions, especially returns because of the Client's own erroneous planning in respect of sizes or quantities, shall only be accepted to the extent that we have agreed in writing to accept returns. Merchandise which we have taken back shall be credited. Any costs of reconditioning and shipping shall be charged to the Client.
9. Payment, Set-Off
In the absence of any specific agreement, payment shall be made without any deduction to the bank account specified by us, within 30 days from the date of the invoice.
The Client shall only have rights of retention of set-off to the extent that his counterclaims will have been accepted by us, or will be uncontested, or will have been confirmed by a final judgment. Any further rights of retention or set-off will only be available to the Client to the extent that his counterclaim is based on the same contractual relationship.
10. Retention of Title (Eigentumsvorbehalt)
Any and all merchandise delivered by us remains our property (qualified merchandise) until all claims will have been fulfilled, especially including any payment balance claims which we have acquired in the course of the business relationship, and any claims which may have been unilaterally created by an insolvency administrator by having chosen to fulfil the contract. This shall also apply to future and conditional claims, e.g., those arising from accepted bills of exchange, and to cases where payment is made in respect of individually specified claims.
Any conditioning and treatment of qualified merchandise shall be carried out on our behalf as manufacturer for the purposes of sec. 950 BGB, without however obliging us in any way. Merchandise conditioned and treated shall be deemed to be qualified merchandise. If the Client treats qualified merchandise, or incorporates it into or amalgamates it with other merchandise, we shall become co-proprietors of the new merchandise by proportion of the invoice value (including V.A.T.) of the qualified merchandise to the invoice value of the other merchandise involved. Should our property extinguish by incorporation or amalgamation, the Client shall already now transfer to us, in the extent of the invoice value of the qualified merchandise, the property rights which he holds in respect of the new asset or item, and shall store such asset or item for us free of charge. Our rights of co-property are subject to retention of title under para. 1 above.
The Client may only dispose of qualified merchandise in the ordinary course of business, and only as long as he is not in default of performance, provided that any and all claims arising from resale shall transfer to us under paras. 4 to 6 hereafter. The Client shall not be entitled to dispose of qualified merchandise in any other way.
Any claims arising from the resale of qualified merchandise shall be assigned to us already now. They shall serve as security to the same extent as the qualified merchandise. Should qualified merchandise be sold by the client together with other merchandise not sold by us, any claim arising from the resale shall be assigned to us by proportion of the invoice value of the qualified merchandise to the invoice value of the other merchandise involved. If merchandise is sold of which we are co-proprietors under para. 2 above, a share corresponding to our share of co-property shall be assigned to us. If qualified merchandise is used by the Client for the fulfilment of a contract for work and labour (Werkvertrag) or of a contract for work and materials (Werklieferungsvertrag), any claim arising from such contract for work and labour or contract for work and materials shall be assigned to us in advance to the same extent.
The Client shall be entitled to collect claims assigned to us. This collection authorization shall expire upon our revocation, however at the latest in the case of default of payment, dishonour of a bill of exchange or application for the opening of insolvency proceedings in respect of the Client's assets. We shall only make use of our right of revocation if circumstances have come to our attention which indicate an essential deterioration of the Client's financial circumstances which could endanger our claim of payment. Upon our demand, the Client shall immediately notify his customers of the assignment to us, and to hand out to us the documents necessary for collection. Claims arising from resale cannot be assigned, unless the assignment should intervene by way of genuine factoring, of which we shall be notified, and in which the factoring revenue exceeds the value of our secured claim. Our claim shall become due immediately upon the crediting of the factoring revenue.
The Client shall immediately notify us of access of third parties to the sales item delivered under retention of title, and to the rights assigned to us. To the extent that such third party is unable to reimburse to us the in-court and out-of-court costs of third party proceedings (Drittwiderspruchsklage) under sec. 771 of the Code of Civil Procedure (Zivilprozessordnung - ZPO -), the Client shall be liable for such costs.
If the Client is in default of payment, or if he fails to honour a bill of exchange when due, we shall be entitled to take back the qualified merchandise, and, if necessary, enter the client's premises for the purpose of doing so. The same shall apply if other circumstances arise which lead to conclude that the Client's financial situation has essentially deteriorated, and endanger our claim of payment. The taking back of merchandise is not tantamount to withdrawal. The provisions of the Insolvency Act (Insolvenzordnung) remain unaffected.
If the invoice value of the existing securities exceeds the secured claims, including secondary claims (such as interest, costs etc.), by more than an aggregate 50%, we shall, upon the Client's demand, be obliged to release securities of our choice in the respective amount.
11. Claims for Defects, Liability
The following provisions shall apply in respect of claims based on defects of sold items or defects of title: Defects of Sold Items
We shall repair or redeliver any items which turn out to be defective because of factors intervened prior to the passing of the risk, it being understood that we shall have the choice of whether to repair or to redeliver. If such defects are detected, we must be notified hereof without delay (unverzüglich) and in writing. Property of any replaced items shall transfer to us.
Once we have been notified, the Client shall give us the time and opportunity required to carry out any repairs and redeliveries which we consider necessary, failing which we shall be released from liability for any consequences thus caused. The Client shall only be entitled to repair a defect himself, or to have a defect repaired by third parties, and to claim from us the reimbursement of necessary expenses, in urgent cases of endangerment of operating safety, or where disproportionately high damage must be averted; in such cases, we must be notified immediately, failing which the Client's right to reimbursement of expenses shall be excluded.
Of the costs arisen by repair or redelivery, respectively, we shall bear the costs of the replacement item including shipping, as well as the adequate costs of disassembly and reassembly, to the extent that the complaint turns out to be justified. Moreover, we shall bear the costs of any necessary assignment of our technicians and support staff if this can be reasonably expected in the individual case.
The client shall be entitled to withdraw from the contract if an adequate deadline fixed to us has expired without avail. Should the defect only be of an insubstantial nature, the Client shall only be entitled to claim reduction of the purchase price. The right to claim reduction of the purchase price is excluded in any other case.
We shall not be liable for defects of the sold item if the cause of such defects is any of the following, and if we cannot be held responsible (Vertretenmüssen) for such cause: Improper or inappropriate use, wrong assembly or incorrect putting into operation, ordinary wear and tear, incorrect or negligent treatment, improper maintenance, inappropriate operating resources, defective construction works, inappropriate building ground, chemical, electrochemical or electrical influences.
If the Client should endeavour to improperly rectify a defect, we shall not be liable for the consequences arising therefrom. The same shall apply to any alterations made to the delivery item without our prior approval. Defects of Title
If the use of the delivery item should lead to the infringement of domestic industrial or intellectual property rights, we shall, in principle, obtain for the Client at our expenses the right of further use, or modify the delivery item in such a way as the Client can be expected to accept (zumutbar) and that the infringement of property rights will not persist. If this should not be possible in an economically adequate manner, or within adequate time, both the Client and we shall be entitled to withdraw from the contract. Moreover, we shall indemnify the Client from claims of the respective holders of rights if these claims are either uncontested or confirmed by a final judgment.
In any case of an infringement of industrial or intellectual property rights, the scope of our obligations as set forth at para. 7 above shall be exhaustive.These obligations are under the proviso that: the Client shall notify us immediately of any claims of an infringement of industrial or intellectual property rights,the Client shall adequately support our defence against claims brought, or, respectively, enables us to carry out the measures set forth at para. 7 above,any and all measures of defence, including out-of-court settlements, remain reserved to us,the defect of title is not based upon an instruction by the Client, andthe infringement of rights was not caused by the Client arbitrarily altering, or using in a non-contractual manner, the delivery item. Further Principles of Liability
The provisions of this section XI. shall also apply - excluding any further claims of the Client - to cases where the delivery item cannot be used by the Client in a contractual manner because of our fault if suggestions made or advice given prior to, or after conclusion of, the contract were not carried out, or were carried out incorrectly, or if other secondary contractual obligations were infringed, especially the duty of instruction on the use and maintenance of the delivery item.
Moreover, we shall be liable under the provisions of statutory law in cases of culpable violation of life, body or health, in cases of wilful action, gross negligence or fraudulent intent. The mandatory liability for personal injury and damage to property under the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected. We shall be liable under the provisions of statutory law for culpable infringement of essential contractual obligations, our liability however being limited to such damage as is typical of the contract and as was reasonably foreseeable. Any and all further claims are excluded.
To the extent not otherwise provided above, any and all claims of liability are excluded, irrespective of the legal nature of the claim made. This especially applies to damages claims based on pre-contractual liability, on other infringements or claims based on tort under sec. 823 BGB for compensation of property damages. The above exclusions of liability also apply to any personal liability of our employees, representatives and auxiliary persons.
The Client's rights in respect of a defect of the sold item shall become time-barred with in one year from delivery of the sold item. Damages claims for the purposes of section XI. para. 10 above, as well as claims based on defects of a building or of delivery items which, in accordance with their normal use, were utilized for a building, and have caused its defectiveness, shall become time-barred within the statutory limitation periods.
13. Labelling of Merchandise
Unless otherwise agreed in writing, no alteration of our merchandise and no spezial labelling which are deemed to be the mark of origin of the Client or of a third party, or which make the merchandise seem to be a special product.
14. Applicable Law, Place of Litigation
To the extent permitted by statutory law, and unless otherwise expressly agreed, the place of execution of deliveries and payments, as well as the place of litigation, shall be our business seat. We are entitled at our discretion to bring claims in the Client's place of litigation.
The contractual relationship as well as any and all disputes arising therefrom, including any and all cases of cross-border transactions, shall be governed by the law of the Federal Republic of Germany.In accordance with sec. 26 of the Federal Data Protection Act (Bundesdaten-schutzgesetz), you are advised that your data which is based on our business relation will be stored.
In accordance with sec. 26 of the Federal Data Protection Act (Bundesdaten-schutzgesetz), you are advised that your data which is based on our business relation will be stored.