General Terms of Purchase and Sale of Heinrich Höner GmbH & Co. KG, Ostarpstrasse 26, D-59302 Oelde
Status: 09/01/2004
1. General scope of application
(1) All performance and deliveries, including all contracts the subject-matter of which is the selling and purchasing of products provided by Höner Technic to a contract partner shall be subject exclusively to the following terms and agreements. Excluding contract partner's other terms and agreements to which we will comply only in the event that we should expressly agree to them and that such agreement is entered into writing, even if the following terms are not exclusively mentioned in any later commercial transaction.
(2) The purchaser's (contract partner's) terms of purchase shall be applicable only in so far as they do not differ from our own contractual terms, even in case the former containing contrary terms and agreements.
(3) Possible legal ineffectiveness of single stipulations of these terms of contract does not affect legal validity of the remaining terms.
In the event that the purchaser changes any contract terms regarding deviations in contradictory and/or supplementary terms, Höner Technic will expressly oppose to such modifications.
2. Offers and documents
(1) Quotations and offers are valid through 6 weeks after dispatch.
(2) Documentation belonging to the offer, like illustrations, drawings, weights and dimensions are only approximate measures, as far as they are not expressly referred to to be binding. The supplier shall reserve all rights, including the rights of ownership and copyright, concerning quotations, drawings and other documents.
(3) Prior to our written confirmation by letter or facsimile orders are not valid. Until then our offer is non-binding. Additional verbal agreements undertaken by telephone or by wire, supplements or alterations become effective only by our written confirmation.
(4) Prices which in our offers and confirmation of orders are not exclusively determined as fix-prices are accepted under reserve of adjustment to increasing wages, material and raw material costs if a period of more than 2 months lies between the contract conclusion and delivery, and the costs increase takes place after the contract has been concluded. Our observance of the preceding prices at follow-up orders is not binding; minimum calculation costs are EURO 35,00.
(5) Excess or short supply of our deliveries of up to 10% of the ordered quantity is subject to the contractual terms.
(6) If the supplier does not accept the order within two (2) weeks from the date of delivery we are entitled to withdrawal.
(7) In the frame of acceptability we can claim alterations of the delivery item from the suppliers regarding construction and make. Hereby effects on additional or lower costs and on the delivery dates have to be regulated by mutual agreement.
3. Prices
(1) Prices are ex works, packing excluded, plus legal VAT (value added tax). Taxes on sales/purchases are charged by us with validity of the day of delivery.
(2) The price indicated by the supplier is binding.
4. Terms of Delivery
(1) Delivery periods are anticipated, even if this is not especially pointed out. Any partial delivery is to be understood as a separate order. Costs for packaging and dispatch respectively transport will be charged separately for each order.
(2) The time of delivery periods is regularly beginning with written mutual consent upon the terms of the order including the availability of data, drawings, test samples placed at our disposal without charges ex our works by the purchaser in the required quantity and final design etc.
(3) The delivery period is kept with the announcement of readiness for dispatch in due time, even in the case that a dispatch turns out to be impossible without our fault.
(4) Where a delayed delivery is concerned and following from this the purchaser will claim us, the purchaser will be obliged to grant an appropriate period of grace for fulfilment.
The purchaser's right to claim compensation for damages is exclusively subject to clause 9 of these terms.
(5) We are entitled to dispatch reasonable partial deliveries. The purchaser must not reject reasonable partial services.
(6) The supplier is obliged to inform us without delay in written form of arising circumstances that will prove that the agreed-upon delivery period cannot be kept.
(7) We are entitled to claim the supplier in case of any delivery delay on the basis of the present law.
5. Reasons for inability to attend delivery
All kinds of events, constituting operational disturbances, like force majeure, strikes, lockouts and other circumstances which substantially impede the supply, production or dispatch, shall entitle Höner Technic to release themselves from the delivery obligations stipulated by the contract by the duration of the obstacles and their after-effects, and shall entitle us to cancel the contract in all or part of it on reasons which become necessary by the circumstances; such events do not entitle the purchaser to withdraw from the contract.
6. Shipment
(1) Shipment shall be forwarded ex works and on the account and risk of the ordering party or the purchaser.
(2) Risk assumption, confiscation included, is automatically transferred to the contract partners (ordering party or purchaser) on hand-over of the goods to the shipping agents or freight carriers, but no later than at the time of their departure from the plant or storage.
(3) The transport ways and transport vehicles to be chosen shall be realised to the best of our knowledge if no other agreement is declared, without any liability in regard to the cheapest and fastet shipping.
(4) Notwithstanding the fact that the goods are announced to be ready for dispatch and are not immediately called, or if the transport is permanently or temporarily impossible, the purchase price falls due for payment. In this event we are entitled to store the goods at supplier's cost and risk according to our best judgement. The supplier's liability for harmful atmospheric influences during transport or storage on the ordered goods shall be excluded.
7. Packaging and insurance
(1) Unless agreed otherwise in the offer or in the confirmation of order acknowledged by us in written form we shall chose packaging to the best of our knowledge. Packaging will be billed separately and will not be taken back.
(2) Insurance against breakage, transport and fire damages to be contracted by the ordering party.
8. Guarantee and Warranty claims
Deviations from dimensions, weights and qualities are admissible according to German DIN Standards. Warranty claims shall be asserted in written form within 8 days after receipt of goods. Faults which could not be revealed within this time, even on careful examination, must be announced to us in written form without delay after they have been detected. Latent defects which cannot be detected after immediate examination can be claimed from us only if the notice of defects reaches us in written form within three months after dispatch of the shipment.
Defaults in performance
In the event that defects caused by us exist are we in the first instance entitled to replace defective parts or to ship a corresponding new consignment. If more than two trials to rectify the defects fail or the rectification shall be delayed in a not tolerable manner, the ordering party shall be entitled to demand a price reduction or cancelling of the contract. The same is valid if the new consignment is defective, too.
No liability shall be provided for the faulty goods delivered by subcontractors, we are responsible for proper machining only. If the machining processed by us is faulty we shall repeat the machining process without costs, any liability for the contract item itself shall be precluded. Further claims such as a replacement of materials and replacement of damages which do not occur at the delivery item are precluded, unless they are based upon our wilfully and gross negligence.
Claims by the contract partner regarding material defects will fall under the statute of limitations within one year of the date of delivery of the object of purchase § 438 III BGB, § 444 BGB and § 479 BGB remain unaffected.
All our obligations for warranty expire in the event that the purchaser or a third party modified the contract items or treated them improperly.
In the event that we do not receive implements necessary for production from our customers such as drawings, illustrations, measures, weights and/or other data or only parts of these after a period of grace of 1 week at least which shall be determined by us, the customer shall be in default of acceptance. After this period we shall have the right to withdraw from the contract. The right to claim for damages shall not be precluded by the withdrawal.
In the event that we do not receive drawings, illustrations, measures, weights and/or other data or only parts of these from our customers which are necessary for the production and the expiration of a period of grace of 1 week at least stipulated by us has elapsed, the customer will then be in default of acceptance.
If the contract items shipped to us are faulty this shall entitle us to claim unabridged legal warranty. In any case are we entitled to ask our supplier for a removal of defects at our own option or to demand a new shipment. We expressly reserve the right of compensation for damages, especially the right on compensation instead of performance.
After an unsuccessful proposal of settlement are we entitled to remove the defects on our own and at the expense of the suppliers if danger or urgency is to be expected.
9. Liability
(1) All claims for compensation of the purchaser are subject to the contents of this para 9. Claims for compensation against us due to negligence, not duly fulfilment of the contract respectively defects of our goods are precluded, unless purposeful intention is alleged on our behalf or our legal representative or our vicarious agents. In so far as no negligent contract breach is alleged on us the compensation of damages shall be limited to incidents which are subject to typically foreseeable damages. This limitation shall not apply in the event of damage to life, body or health depending on our negligent behaviour or purposeful intention. These terms and conditions of business shall preclude any personal liability of our legal representatives, vicarious agents. Claims arising out of a compensation for damages in accordance to the product liability law shall remain unaffected.
(2) Claims of compensation for damages entitled to us on account of negligence, not duly fulfilment of contract respectively defectiveness of goods and the claims of compensation against our purchasers, especially on account of unfounded and abusive negligence of notification of defects cannot be precluded.
10 Substitute delivery
(1) A substitute delivery or credit note can be realised not before a definite stipulation of an obligation to replacement has been carried out in our works. For this purpose the goods in question which have been rejected must be sent to us exempt from charges. In the event of urgent need replacement will be shipped and charged with the special price valid on that day, it will be credited after the obligation for replacement has been stipulated. For commission processing of subcontractors we guarantee, as stipulated under para 8, only for proper machining of the parts shipped to us. Proceeding claims are precluded.
(2) It is referred to the mandatory clause of non-commitment of the German Federal Cartel Office (Bundeskartellamt Germany). In the event that purchaser/ordering party or any third party undertakes modifications or maintenance works prior to our written assent this shall cancel our liability. Proceeding claims of the purchaser, especially the claim of replacement of damages which did not originate at the delivery item itself, do not exist.
11. Acceptance and inspection
In the event that a functional check for the products to be shipped is specified or agreed upon must such be realised in our works and at the expense of the purchaser immediately after the announcement of delivery. If the purchaser fails to do so, the goods are accepted on that condition when leaving our works.
12. Terms of payment
(1) Payment for invoice amounts shall be due within 30 (thirty) days ex date of invoice without discount or 10 (ten) days ex date of invoice with a discount of 2 % (two %) under exclusion of set-off (payment shall be made without set-off for any claim arising) and the right of retention.
(2) In any case credit notes become effective on receipt and irrespective of previous payment date of the purchase price at delayed payment of the ordering party; credit notes become effective on the value date of the day when we can dispose of the counter-value.
(3) In the event of exceeding the date of payment Höner Technic shall have the right to charge interests to the amount of 8 % of the respective base interest rate. (Verbraucher i.S.d. para 13 BGB 5 % (Geman Civil Code)).
(4) Non-compliance of terms of payment or circumstances we become acquainted with after conclusion of a contract, suitable to reduce the credit status of the contract partner, shall bear the consequences of the immediate payment of all our outstanding accounts. Furthermore Höner Technic shall be entitled to deliver still outstanding contract products against advance payment only or by provision of security as well as to demand payment after an appropriate grace period, irrespective of the right of redemption of the goods delivered under the reservation of title at the expense of the purchaser.
(5) The detention of payments on account of purchaser's counterclaims which are not admitted by Höner Technic shall be excluded as well as set-off claims.
(6) Prior to our consent the supplier shall not be entitled to assign his claims against us, which shall not be unreasonably refused, or to have these collected by third parties.
(7) If premature deliveries are accepted by Höner Technic, maturity complies with the stipulated date of delivery.
13. Reservation of ownership
(1) All delivered goods shall remain the property of Höner Technic until such time as all claims by Höner Technic including incidental claims ( e.g. costs for bill of exchange, interests, financing costs) have been satisfied. The purchaser/ordering party, however, shall be entitled to sell the goods by way of an orderly business transaction. In this event the purchaser shall assign all claims to Höner Technic arising out of this business transaction with the buyer or third party at the specific amount of the invoice (including VAT) independent from the fact that the delivered goods have been sold without or after processing.
(2) The reservation of ownership comprises also products which have been processed and/or mixed with our goods or are related to them up to their full value, whereby Höner Technic is the manufacturing company. In the event that under processing, mixing or compound transactions the goods of that third party remain in their right of ownership, we are entitled to obtain a co-ownership share to the amount of the invoice values of these processed goods.
(3) If claims arise from selling-on to third parties the purchaser shall assign these in total respectively to the amount of the possible co-ownership share by way of security. He is entitled to collect these for our account until cancellation or stop of his payments to our benefit. The assignment of these claims does not entitle the purchaser to collect these claims by the way of factoring, unless the obligation of the factor is simultaneously constituted, to effect an immediate valuable consideration amounting to our claim share as long as our claims against the purchaser are still effective.
In the event that this so-called prolonged reservation of ownership fails on account of a defence clause in the purchase terms of the purchaser, he shall not be entitled to a selling-on of the goods on account of a missing authorization. The authorization, however, shall be valid if no defence clause exists or the purchase terms of the purchaser noticeably accept this so-called prolonged reservation of ownership.
(4) the purchaser shall inform us promptly in written form by registered letter of any judicial garnishments or sharing of third parties in regard of our goods and claims.
In the event of garnishment or other sharing of third parties the purchaser shall inform us promptly in written form enabling us to suit according to para 771 ZPO. Insofar as the third party is not in a position to refund us the judicial and extrajudicial costs of such a suit, the purchaser shall be liable for such irretrievable amounts.
(6) A violation of the contract, especially defaulty payment of the purchaser, shall entitle us to take back the delivered goods in whole or in part. No withdrawal from contract shall be constituted by withdrawing the contract goods or in the exercise of rights of ownership unless such is expressly declared by Höner Technic in written form.
(7) The goods and claims arising from these shall neither be pawned nor assigned by way of security to third parties.
(8) Höner Technic shall agree to release upon request by the contract partner the securities to which it is entitled, provided their value exceeds the value of the secured unsatisfied claims by more than 20%.
14. Place of Performance, place of Jurisdiction
The place of performance and jurisdiction regarding deliveries, payments, claims from checks and bills of exchange and all other rights and liabilities arising from the business for both contract parties is Oelde. If necessary, the juridicial authorities from outside which are competent for Oelde are agreed upon.
15. Data Storage
With the date of business relation data storage is realised by Höner Technic according to the Data Protection Law of the Federal Republic of Germany.
16. Secrecy
The contract partner shall not use for any purpose not authorized by the delivery agreements concluded hereunder or disclose to any third party any trade or manufacturing secret or customer data of Höner Technic.
Drawings, models, samples and similar items shall be made available or left to third parties only in the frame of a necessary processing of the order. Such items shall be copied only in the frame of necessary manufacturing processes or determinations regulated by copyrights
17. Miscellaneous, Severability Clause
(1) The legislation of the Federal Republic of Germany is expressly valid. Application of the standardised purchase laws laid down and agreed upon in the Law of Sales in Haag is excluded.
(2) In the event any term or provision of these General Business Terms shall for any reason be invalid, illegal or unenforceable in any respect such invalidity, illegality or unenforceability shall not affect any other provision hereof.
Exclusivity stipulation
Deviations arising from the translation of the above mentioned General Terms of Höner Technic shall have no effect on a legal dispute. The German version of the General Terms shall have legal validity.