GENERAL TERMS AND CONDITIONS 06.02
Albert Hoffmann GmbH
1.1 These terms shall be applicable for all services of Albert Hoffmann GmbH,
in particular the sales and supply of goods to persons who are not consumers in terms of Article 13 BGB (German Civil Code).
1.2 Deviating conditions of the purchaser which we do not expressly accept in writing shall not be binding for us, even if we do not expressly disagree.
2. Price and payment
2.1. Unless otherwise agreed, payments shall be due net within 30 days upon receipt of the invoice.
2.2. Where the payment term is exceeded, default interest to the amount of eight percent above the discount rate of the Deutsche Bundesbank will be charged. A special notice of default is not required.
2.3. The date of receipt of payment when we have the amount at our disposal shall apply for checks and transfers. Bills of exchange, checks and other means of payment shall only be accepted in lieu of performance. Discount, collection charges and other expenses shall be at the expense of the purchaser.
2.4 The purchaser shall neither offset against counterclaims, nor assert a right of retention due to these claims, unless it is undisputed or legally binding claims.
3.1 If the goods are shipped to the purchaser upon his request, the risk of accidental loss and accidental deterioration of the goods shall be passed to the purchaser with the delivery to our shipping agent, but not later than when the goods leave the plant or warehouse, regardless whether the shipment is made from the place of performance and who bears the freight costs. If the goods are ready for shipment and the shipment or acceptance is delayed for reasons the seller is not responsible for, the risk shall be passed to the purchaser upon receipt of the notice of readiness for shipment.
3.2 The purchaser shall automatically report the transport route, carriage, means of protection and packaging. Otherwise it is subject to our own discretion.
3.3 Shipping and packaging costs shall be at the purchaser’s expense.
3.4 The weights and quantities communicated and determined by us shall be decisive for the calculation.
4.1 Information on weight, quality and size shall only be approximate. Deviations according to DIN shall be permitted.
4.2 Partial deliveries to a reasonable extent, as well as production-related excess or short deliveries up to ten percent of the total order quantity, shall be permitted.
4.3 The purchaser shall be obliged to perform a receiving inspection of the goods.
4.4 The delivery term shall be approximate, provided that a fixed delivery term has not been agreed. It is considered observed, when the goods have left the plant/warehouse at the agreed deadline or the customer has been notified of the readiness for shipment in the case of shipping options. In the event of delay in delivery a reasonable extension shall be granted. Deliveries ordered on demand shall be accepted within twelve months following the order confirmation at the latest. Insofar as we are prevented from complying with our obligation due to unpredictable extraordinary events, which we cannot control, notwithstanding the reasonable diligence according to the circumstances of the individual case - regardless whether these have occurred in our plant or with our suppliers - in particular in the case of governmental interventions, breakdowns, labor disputes, delays with the supply of raw and auxiliary materials, the delivery term shall be extended by a reasonable time. If the delivery or service in terms of Article 275 I-III BGB (German Civil Code) is not possible due to the aforementioned events, we shall be released from the delivery obligation without the customer being entitled to withdraw from the contract or to demand compensation. If the aforementioned obstacles occur with the customer, the same legal consequences shall also apply for his commitment. The contracting parties shall be obliged to inform the other party immediately about obstacles of the aforementioned type.
4.5 The customer must provide unhindered access to the tidy site for assembly work. It must be possible to unload the parts to be delivered by us close to the site. In the case of waiting times we are not responsible for the customer shall bear all costs incurred.
5. Retention of Title
5.1 We shall reserve the title to all goods (retention goods) supplied by us until all payments from the business relation - in particular from a current account balance - have been paid. Insofar as we agree with the customer on payment via the check-bill of exchange method, the retention shall also apply for taking up the bill accepted by us by the customer, including any and all contingent liabilities, e.g. our possible liability for drawing and does not expire by credit entry of the received check. In this context all orders shall be considered as a standard business transaction.
5.2 The customer shall not be entitled to pledge our goods or assign these to a third party by way of security. In the case of seizures or other inventions of a third party the customer must inform us immediately in writing and inform the third party of our rights. Insofar as the third party is not able to reimburse court and out-of-court fees of an action against execution, the customer shall be liable for the loss incurred by us.
5.3 The goods delivered by us shall be treated and processed by the customer in terms of clause 5.1. When the customer or his representatives processes, combines and mixes the retention goods with other goods not in our property, we shall acquire co-ownership to the new item in proportion of the invoice value of the retention goods to the invoice value of the other goods used. If our ownership expires as a result of combining or mixing, the customer shall transfer ownership rights he is entitled to now for the new inventory or the new item to the level of the invoice value of the retention goods and shall hold them in custody on our behalf at no charge. The co-ownership rights resulting from this shall be considered retention goods in terms of clause 5.1.
5.4 The customer may only sell the retention goods in the normal course of business, at his usual terms and conditions and as long as he is not in default, provided that he agrees with his customer on retention of title and that the claims from resale are passed to us in accordance with clause 5.5. - 5.7. The customer shall not be entitled to any other disposal of the retention goods.
5.5 The claims of the customer from the resale of the retention goods shall be assigned to us now. They shall be for securing our claims to the same extent as the retention goods.
5.5 If the retention goods are sold by the customer together with other goods that are not sold by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the respectively sold retention goods. For the sale of goods where we have a co-ownership share in accordance with clause 5.2 the assignment of the claims shall apply to the amount of these co-ownership shares.
5.7 If the retention goods are used by the customer for the performance of a service contract or a contract for labor and materials, clauses 5.5 and 5.6 shall apply for the claims from this contract.
5.8 The customer shall be entitled to collect claims from the sale in accordance with 5.4 and 5.7 to our withdrawal, which is admissible at all times. In no case shall the customer be authorized to assign the claim. The withdrawal shall be considered as made when payments are suspended, bankruptcy is filed or initiated, with judicial or extra-judicial settlement proceedings, check or bill protest or a seizure made. Receivables assigned to us which are received at a later stage shall be collected in a separate account under the name “receivables of Albert Hoffmann GmbH, 52249 Eschweiler”. The assigned receivables shall be immediately communicated to us including first name and surname, address and amount of the receivable of third-party debtors and the same shall be informed about the assignment made - provided that we have not initiated it. At the same time we must be provided with a list of the goods still available at the customer’s.
5.9 If the value of the existing securities exceeds the secured claims by more than 20 %, we shall, upon request of the customer, be obliged to release securities at our own option.
5.10 If the retention of title or the assignment is not valid in accordance with the law the goods are subject to, the security complying with the retention of title or assignment in this area shall be considered agreed upon. If the participation of the customer is required in this respect, he must take all measures required for the creation and safeguarding of such rights.
6. Warranty, liability and notice of defects
6.1 Warranty claims
If the goods delivered by us are not free of material defects or they will become defective within the warranty period due to manufacturing or material defects, we will deliver parts for replacement or repair with exclusion of further warranty claims of the customer - at our own discretion. The misalignment of such defects must be reported to us immediately – however, with obvious defects not later than ten days following receipt, with latent defects immediately upon detection, otherwise the goods shall be considered accepted; the same shall be applicable, if the customer does not object to the rejection of his notice of defects within four weeks. In any case we shall be granted the possibility to inspect the defects, otherwise we shall be exempted from any warranty. Except for the cases of articles 438 I no. 2 and 634 a I no. 2 BGB the warranty period shall be (maximally) one year from the delivery of the goods. There shall be no warranty for defects caused by inappropriate or improper use, maintenance and storage, incorrect assembly or commissioning by the customer or third parties, natural wear, incorrect or negligent treatment, as well as for consequences due to improper modifications or repair by the customer or third parties performed without our consent. We shall also not be liable for materials provided by the customer, unless it has been otherwise agreed on a case-by-case basis. The warranty shall expire in any case when the goods are processed. The customer shall be obliged to return the defective parts at his own charge upon request and enable us to repair the parts; the expenses required for this, in particular transport, road, labor and material costs shall be borne by the customer. Our warranty shall expire, insofar as the customer does not perform his duties. If we have allowed a prescribed reasonable extension to expire without having provided a replacement or remedied the defect, the customer shall be entitled to withdrawal. For replacements and repair work we shall warrant to the same extent as for the original goods. We shall provide application-technical consultation to the best of our knowledge on the basis of research work and experience; however, all information and details concerning suitability and application of our goods shall be non-binding, unless we have expressly declared these as binding on a case-by-case basis. They do not exempt the customer from his own inspections and tests. We shall reserve ownership and copyright to models, figures, drawings and other documents. Without our consent they shall not be disclosed to a third party and shall be immediately returned to us upon request. If property rights of a third party are infringed upon when the goods are manufactured on the basis of models, drawings or other information of the customer, the latter shall exempt us from any and all claims. Models, tools and special facilities manufactured by us shall remain our property even with cost sharing by the customer, unless the customer is willing to acquire the models, tools and special facilities following the business relation against reimbursement of full costs. Order-related production facilities such as models and tools shall be kept by us free of charge for the period of three years following the last cast. Afterwards the customer shall pay a reasonable rent. We shall also be entitled to return the production facility - at our own option - at his expense and risk or destroy it against reimbursement of costs.
6.2 Claims of the contracting party from absolute liability shall be excluded. The seller shall also not be liable for damage of the contracting party caused by a slightly negligent breach of duty or another slightly negligent action of the seller or his legal representative or agent. Furthermore, he shall not be liable for damage caused by grossly negligent violation of a duty not belonging to the material contractual obligations by an ordinary agent. The guarantee value shall be limited to the replacement of damage that typically occurs with the business in question. The exclusion and limitation of liability shall not apply to damage to life, body or health, as well as to claims in accordance with the Product Liability Law (ProHaftG).
7. Concealment of assets of the customer
7.1 If, after conclusion of the contract, we get knowledge of facts indicating a substantial deterioration of the financial circumstances of the customer that might jeopardize our right to return service according to best commercial judgment, we may require until the date of performance the deposit of a suitable security within an adequate period of time or performance or return service. Should the customer fail to comply with our legitimate demand or fail to comply with it in a timely manner, we may withdraw from the contract or claim compensation for damage due to non-compliance.
7.2 If the customer falls behind with a partial performance, we shall be entitled to declare due the total residual claim and, in the case of a delay of performance caused by a material deterioration of the financial situation, withdraw from the contract without setting an extension of time or claim compensation for damage due to non-compliance. In the case of delay of performance that is not related to the assets we shall be entitled to demand the withdrawal from the contract following the unsuccessful expiry of a reasonable extension period.
8. Place of fulfillment and place of jurisdiction
8.1 For the liabilities based on the contract or the declared withdrawal the place of fulfillment shall be D 52249 Eschweiler.
8.2 Place of jurisdiction shall be the court responsible for the registered office of Albert Hoffmann GmbH, insofar as the customers are businessmen (however, not businessmen in accordance with article 4 HGB (German Commercial Code), public-law legal persons or special funds under public law. In this case we shall be entitled to go to the court responsible for the customer’s place of residence.
8.3 The law of the Federal Republic of Germany shall apply with the express exclusion of the legislation in performance of the Hague Convention on Purchases.
Albert Hoffmann GmbH - Eschweiler