1. Validity

1.1 All deliveries, services and offers of Hommel + Keller Präzisionswerkzeuge GmbH, Aldingen (hereinafter also referred to as "Seller") are made exclusively on the basis of these General Terms of Delivery. These are an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as "Customer") for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.

1.2 Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller makes reference to a letter which contains or refers to the terms and conditions of the Customer or of a third party, this shall not constitute agreement with the validity of those terms and conditions.

 

2. Offer and conclusion of contract

2.1 All offers of the seller are subject to confirmation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt.

2.2 The legal relationship between Seller and Customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This completely reproduces all agreements between the contracting parties on the subject matter of the contract. Oral promises made by the Seller prior to the conclusion of this contract shall be legally non-binding and oral agreements of the parties to the contract shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.

2.3 Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the Seller's employees shall not be entitled to enter into any verbal agreements deviating from these. Telecommunications transmission, in particular by fax or e-mail, shall suffice to comply with the written form, provided that a copy of the signed declaration is transmitted.

2.4 Information provided by the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose presupposes exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose. If tools or products not listed in the list are ordered, the intended number of pieces may be under- or overshot by 10% for each delivery, but at least 1 piece of the ordered quantity.

2.5 The Seller reserves the title or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The customer may not make these objects accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the Seller's request, he shall return these items to the Seller in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of customary data backup.

 

3. Prices, invoicing and payment

3.1 The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be invoiced separately. Prices are quoted in EURO ex works (EXW) plus packaging, statutory value-added tax, customs duties for export deliveries and fees and other public charges. The minimum order value is EUR 75.00 net. For orders under EUR 75.00, the value of the goods will be rounded up to EUR 75.00.

3.2 Insofar as the agreed prices are based on the Seller's list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply.

3.3 The Seller's invoices shall be sent electronically unless explicitly agreed otherwise. Electronic invoices shall be sent to the Customer by e-mail in PDF format.

3.4 Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. If payment is made within 14 days of the invoice date, a discount of 2% shall be granted. Payment by cheque is excluded unless agreed separately in individual cases. If the Customer fails to pay on the due date, the outstanding amounts shall bear interest from the due date at an interest rate of 8 percentage points above the applicable base interest rate; the assertion of higher interest rates and further claims in the event of default shall remain unaffected.

3.5 Offsetting against counterclaims of the Customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been established as legally binding.

3.6 The Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which endanger the payment of the outstanding claims of the Seller by the Customer from the respective contractual relationship (including from other individual orders to which the same framework contract applies).

 

4. Delivery and delivery time

4.1 Deliveries are made ex works (EXW).

4.2 Periods and dates for deliveries and services promised by the seller are always approximate unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

4.3 Irrespective of the Seller's rights arising from the Customer's default, the Seller may demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the Customer fails to meet its contractual obligations towards the Seller.

4.4 The Seller shall not be liable for the impossibility of delivery or for delays in delivery if these were caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure to receive supplies from suppliers in due time or incorrectly) for which the Seller is not responsible. Insofar as such events substantially impede or render impossible delivery or performance by the Seller and the impediment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot be reasonably expected of the Customer as a result of the delay, the Customer may withdraw from the contract by immediate written declaration to the Seller.

4.5 The Seller shall only be entitled to make partial deliveries if

- the partial delivery can be used by the customer within the scope of the contractual purpose,

- the delivery of the remaining ordered goods is ensured and

- the client does not incur any significant additional costs or expenses (unless the seller agrees to bear such costs).

4.6 If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller for any reason whatsoever, the Seller's liability shall be limited to damages in accordance with Section 8 of these General Terms and Conditions of Delivery. In the event of simple negligence, the claim for damages from delay in delivery shall be limited to 0.5% per full week, but in total to a maximum of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.

5 Place of performance, dispatch, packaging, passing of risk, acceptance and return

5.1 The place of performance for all obligations arising from the contractual relationship shall be Aldingen, unless otherwise agreed. If the Seller also owes the installation, the place of performance shall be the place where the installation is to take place.

5.2 The mode of dispatch and packaging are subject to the dutiful discretion of the seller.

5.3 The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has undertaken other services (e.g. dispatch or installation). If dispatch or delivery is delayed as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Seller has notified the Customer accordingly.

5.4 Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to assert and prove further or lower storage costs.

5.5 The Seller shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer's expense.

5.6 Insofar as acceptance is to take place, the object of purchase shall be deemed to have been accepted if

- the delivery and, if the Seller also owes the installation, the installation has been completed,

- the Seller has informed the Customer of this with reference to the fiction of acceptance in accordance with this provision and has requested the Customer to accept the goods,

- 12 working days have elapsed since delivery or installation or the Customer has started using the purchased item (e.g. the delivered system has been put into operation) and in this case five working days have elapsed since delivery or installation and

- the Customer has omitted acceptance within this period for a reason other than a defect notified to the Seller which makes the use of the object of sale impossible or significantly impairs it.

5.7 Return

- All returns must be made in the original packaging with all original documents, indicating the delivery note or invoice number.

- For wrong orders we charge a 20% handling fee, but at least 25€. Goods returned after 30 days from the date of dispatch will not be accepted.

- Custom-made goods are excluded from return or exchange.

 

6 Warranty, defects as to quality

6.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall in each case become statute-barred in accordance with the statutory provisions.

6.2 The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful examination, they shall be deemed to have been approved by the purchaser if the seller does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if the notice of defect is not received by the Seller within seven working days of the time at which the defect became apparent; if the defect was already recognisable to the Customer at an earlier point in time under normal use, this earlier point in time shall, however, be decisive for the commencement of the notice period. At the Seller's request, a rejected delivery item shall be returned to the Seller carriage paid. This shall not apply if the costs increase because the delivery item is located at a location other than the location of the intended use.

6.3 In the event of material defects of the delivered items, the Seller shall initially be obliged and entitled to remedy the defect or deliver a replacement at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the customer may withdraw from the contract or reduce the purchase price accordingly.

6.4 If a defect is based on the fault of the seller, the client can claim damages under the conditions specified in point 8.

6.5 In the event of defects in components of other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the forementioned claims against the manufacturer and supplier was unsuccessful or has no prospect of success, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against the Seller shall be suspended.

6.6 The warranty shall lapse if the customer changes the delivery item or has it changed by a third party without the consent of the seller and the removal of the defect is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect incurred as a result of the change.

6.7 Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.

 

7. Property rights

7.1 In accordance with this provision, the Seller warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

7.2 In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at his option and expense, modify or replace the delivery item in such a way that no rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement. If the Seller fails to do so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages on the part of the Customer shall be subject to the restrictions set forth in Section 8 of these General Terms and Conditions of Delivery.

7.3 In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and sub-suppliers for the account of the Customer or assign them to the Customer. In such cases, claims against the Seller in accordance with this provision shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers was unsuccessful or, for example due to insolvency, has no prospect of success.

 

8. Liability for damages due to culpa in contrahendo

8.1 The Seller's liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort, shall be limited in accordance with this Clause 8 to the extent that fault is involved.

8.2 The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, provided that this is not a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and material defects which more than insignificantly impair its functionality or fitness for use, as well as obligations to provide advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer's personnel or to protect the customer's property from considerable damage.

8.3 Insofar as the Seller is liable for damages in accordance with Section 8.2, this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen if he had exercised due care. Indirect damage and consequential damage resulting from defects of the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

8.4 The foregoing exclusions and limitations of liability shall apply to the same extent in favour of the Seller's executive bodies, legal representatives, employees and other vicarious agents.

8.5 Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice does not form part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.

8.6 The limitations of this point shall not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

 

9. Retention of title

9.1 The goods delivered by the Seller to the Customer shall remain the property of the Seller until full payment of all claims to which the Seller is entitled against the Customer. The goods as well as the goods covered by the retention of title and replacing them in accordance with the following provisions shall hereinafter be referred to as "reserved goods".

9.2 The Customer shall be entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (Clause 9.7) has occurred. Pledges and transfers by way of security are not permitted.

9.3 If the reserved goods are processed by the Customer, it shall be deemed agreed that the processing is carried out in the name and for the account of the Seller as manufacturer and that the Seller directly acquires ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur with the Seller, the Customer hereby transfers its future ownership or - in the above ratio - co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall transfer to the Buyer, to the extent that the main item belongs to the Seller, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.

9.4 In the event of resale of the reserved goods, the customer hereby assigns to the seller as security the resulting claim against the purchaser - in the event of co-ownership of the reserved goods by the seller pro rata in accordance with the co-ownership share. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorises the client to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorisation in the event of realisation.

9.5 If third parties have access to the reserved goods, in particular by seizure, the Customer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Client shall be liable to the Seller for such costs.

9.6 The Seller shall release the reserved goods as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 10%. The Seller shall be responsible for selecting the items to be released thereafter.

9.7 If the seller withdraws from the contract in the event of conduct contrary to the terms of the contract on the part of the customer - in particular in the event of default in payment - he shall be entitled to demand the return of the reserved goods. The same shall apply if an application is filed for the opening of insolvency proceedings against the Customer's assets.

9.8 Insofar as the above-mentioned regulations on retention of title or analogous security rights abroad require further legal acts for their effectiveness, the Customer shall be obliged to implement these immediately.

 

10. Final provisions

(1) The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be Aldingen or the registered office of the Customer, at the choice of the Seller. In such cases, however, Aldingen shall be the exclusive place of jurisdiction for legal action against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relations between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(3) Should any of the above provisions be invalid, this shall not affect the validity of the remaining provisions.

 

Note:

The Customer acknowledges that the Seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) insofar as this is necessary for the fulfilment of the contract.

 

As at 12/2019