General Terms and Conditions

of Heinrich Höner GmbH & Co. KG, Ostarpstrasse 26, 59302 Oelde, Germany

1. General

(1) The terms and conditions as stipulated below apply to all deliveries and performances of Heinrich Höner GmbH & Co. KG.

(2) Any terms and conditions of the customer are only accepted provided that they are not deviating from our terms and conditions. The customer is obliged to inform us of the intended inclusion of his terms and conditions before conclusion of the contract.

2. Offers and bidding documents

(1) Our offers are non-binding.

(2) Documents and information belonging to the offer, like illustrations and drawings, weights and measures are only approximate, unless the attachments to our offer are explicitly referred to as being binding. We hereby reserve all rights in our documents.

(3) Orders are only considered as being taken, if they are confirmed by us by letter, fax or e-mail. Verbal supplements to an agreement, additions or alterations only take effect as soon as they are confirmed by us by mail, fax or e-mail.

(4) We will reserve the right to increase any agreed prices due to increases in wages, material and raw material costs, if there is a period of more than 4 months between the conclusion of the contract and the delivery and if the increase in costs took place after conclusion of the contract.

(5) Excess or short deliveries of up to 10% of the ordered quantity are considered to meet the conditions under contract, as far as this change of the scope of delivery is reasonable for the customer in due consideration of our own interests.

3. Prices

Prices are ex works Oelde, plus freight and packaging costs and the statutory value-added tax which applies for our supplies.

4. Terms of delivery

(1) Delivery dates are considered as approximate dates, unless explicitly agreed upon otherwise.

(2) The period of delivery begins as soon as the order is clear from the technical side. In individual cases, this includes the provision of data, drawings and test samples in the requested quantities and final designs by our customer, free of charge and on a free delivery basis.

(3) The delivery date is considered to be respected as long as the readiness for shipment is announced in time, even if the dispatch of the goods is no longer possible afterwards. This does not apply if the goods cannot be shipped due to any deliberate or grossly negligent actions on our part.

(4) In case we do not respect any contracted dates and deadlines, the customer is obliged to grant us appropriate respites. An immediate cancellation of the contract is excluded.

(5) We are entitled to partial deliveries. The customer can only reject partial deliveries in case they are not reasonable for him in due consideration of our own interests.

5. Inability to deliver

Unforeseen events for which we are not responsible and which are leading to a disruption or break of production will release us from our delivery commitments during the full period of interruption as well as the period afterwards governed by any after-effects and entitle us to cancel the contract in full or partially. In this case, we are obliged to inform the customer immediately on the non-availability of the performance and to reimburse any considerations of the customer without delay.

6. Shipment

(1) Shipment is effected ex works and is always on the account and at the risk of the customer.

(2) When handing over the goods to the forwarding agent or freight carrier, or at the latest when leaving our premises, the risk of loss or deterioration of our goods is transferred to the customer.

(3) Unless the customer is giving us any instructions for shipment, we are entitled to select reasonable transport means at our own discretion.

(4) If the goods are announced to be ready for dispatch and not accepted by the customer, we are entitled to set an appropriate time limit for acceptance of the goods. In this case, we are entitled to store the goods at the customer’s risk and expense.

7. Packaging and insurance

Insurance against damages arising from breakage, transport and fire is the responsibility of the customer.

8. Guarantee and notification of defects

(1) Deviations from measures, weights and qualities are acceptable within the standarised tolerances. Notifications of defects have to be made either by mail or e-mail within 14 days after receipt of the goods at the latest. Shortcomings which cannot be identified within this time limit, even after careful examination, must be announced to us by mail or e-mail without delay after they have been detected. If in the case of a transfer of perils, there are shortcomings of our delivery and/or performance, the customer will only be entitled to supplementary performance. In the first instance, we are entitled to remedy the deficiencies or to provide the customer with another shipment. The customer has to grant us at least two supplementary performances. If the supplementary performances fail or are delayed in a way which is not acceptable for the customer, he has the right to demand for a reduction in price or to cancel the contract. In the case of supplementary performance, we do not bear the costs of installation or dismantling of the goods we delivered, except for cases where we are responsible for an insufficient shipment of goods.

(2) In the case of wagework, we assume no liability for the intactness of the delivered goods. We are only liable for a proper treatment in accordance with the stipulated specifications. If the treatment of the goods executed by us is faulty, we will repeat the treatment free of charge. Further claims, especially the replacement of materials and compensation of damages which do not concern the delivery item itself, are precluded, unless they are caused by an essential breach of contract or grossly negligent or intended actions on our part.

(3) Claims regarding deficiencies of our performances are lapsing 12 months after the beginning of the statutory limitation. This does not apply to claims regarding deficiencies referring to § 438 para. 1 No. 2 and § 634a para. 1 No. 2 of the German Civil Code BGB. In these cases, the statutory period of limitation applies.

(4) Our obligation for supplementary performance expires in the event that the customer or a third party executed unintended modifications at our performances or treated the goods inappropriately.

(5) In the event that our customer does not provide us either in full or partially with tools, drawings, illustrations, measures, weights and/or any other data which are necessary for production, the customer is in default after the respite set by us of a minimum of one week has expired. We are then entitled to cancel the contract. Our right to claim damages is thereby not excluded. Our right to ask the customer for participation according to § 643 German Civil Code BGB thereby also remains unaffected.

9. Indemnity

(1) All claims for indemnity of the customer are governed by this section 9.

(2) Claims for indemnity against us due to breach of duty, non timely execution of the contract or faulty goods are precluded, unless we, our legal representatives or vicarious agents are accused of intent, gross negligence or essential breach of contract.

(3) As long as we are not accused of an intended breach of contract, the liability for indemnity is always limited to predictable and typically occurring damages. This limitation of liability does not apply in the event of indemnities for damage to life, body or health resulting from a grossly negligent or intended breach of duty by us, our legal representatives or our vicarious agents as well as in cases of mandatory legal liability, e.g. according to the Product Liability Act.

(4) The customer will only be entitled to charge us with a contractual penalty agreed upon with a third party, if he explicitly informed us of this regulation in writing prior to the conclusion of the contract and we in return acknowledged the receipt of this information in writing to the customer. We herewith object to any provisions for contractual penalties related to us.

10. Acceptance and testing

In the event that a performance test for the products to be delivered is either stipulated or agreed upon, it has to be executed at the location as stipulated by contract, alternatively on our premises immediately after the announcement of readiness for dispatch and at the expense of the customer. If the customer fails to do the test, the goods are considered as being inspected according to the terms and conditions when leaving our premises.

11. Terms of payment

(1) Unless deviant terms of payment are specified in our offer, payment must be made within 30 days after the invoice date without discount or within 10 days after the invoice date with a 2% discount. In this respect, the date payment is credited to one of our accounts is decisive.

(2) Credit notes are always subject to receipt of the respective amounts and are irrespective of previous due-dates of our accounts receivable at delay by the customer. Credit notes are effected with the value date of the day we received the amounts in our bank accounts.

(3) The customer may only set-off against claims which are uncontested or legally binding. The customer will only have a right of retention concerning our compensation claims, if both concern the same contractual relationship.

12. Reservation of proprietary rights

(1) All delivered goods remain the property of Heinrich Höner GmbH & Co. KG until our accounts receivable including incidental claims (e.g. costs for bills, financing costs or interests) have been settled in full. The customer is, however, entitled to sell the goods by way of an orderly transaction. In this case, the customer has to assign to us immediately all accounts receivable totalling the final invoice amount (including VAT) arising from the sale to the buyer or a third party, independent of the fact whether the delivered goods have been resold without or with further processing. We accept the assignment immediately.

(2) The reservation of proprietary rights also concerns those products which arise from the processing, mixing and / or combining of our goods at their full value, whereby we are considered to be the manufacturer, however, without any obligations on our part. In the event that under the processing, mixing or combining of our goods with third-party goods the proprietorship of the third party continues to exist, we are entitled to obtain a co-ownership equivalent to the amount of the invoice values of the processed goods. The customer will keep this co-ownership for us free of charge.

(3) For reasons of security, accounts receivable against third parties arising from reselling are assigned to us by the customer immediately either in total or at the amount equivalent to our assumed co-ownership share. The customer is entitled to collect these against our invoices until revocation or cessation of payments to us.

(4) In case the customer acts contrarily to the contract, especially in the case of default of payment, we are entitled to take back the delivered goods either in full or partially. The redemption of goods or any other execution of the reservation of proprietary rights does not entail a cancellation of the contract, unless this is stated by us in writing.

(5) The goods and corresponding accounts receivable shall neither be pawned to third parties nor assigned by way of security before they have completely been paid.

(6) If the value of the securities exceeds our accounts receivable, upon request of the customer, we are obliged to release those securities which exceed our accounts receivable.

13. Place of performance and place of jurisdiction

In the event that the customer is a merchant, the exclusive place of performance and jurisdiction regarding deliveries, payments, claims from checks and bills as well as all other rights and duties arising from the contract is Oelde, Germany.

14. Data storage

With the beginning of the business relationship, data storage on our part is performed according to the German Data Protection Act.

15. Secrecy

The contracting parties are obliged to treat as business secrets all commercial and technical information which is not general knowledge and becomes known to them through their business relationship. Drawings, models, samples and similar items may only be allocated or made available to third parties within the framework of the necessary execution of the order. The duplication of such items is only allowed within the framework of the operational requirements or determinations stipulated by copyrights.

16. Miscellaneous, severability clause

(1) The legislation of the Federal Republic of Germany is expressly valid.

(2) In case any of the determinations mentioned above are or become invalid either in full or partially, the validity of the remaining determinations is not affected thereby.

© 2009-2015 Heinrich Höner GmbH & Co KG, Antriebselemente- und Getriebebau | 59302 Oelde-Lette