General Terms and Conditions of Business and Delivery (GTC)
1. General provisions
(1) All deliveries, services and offers of the Seller are made exclusively on the basis of these General Terms and Conditions of Business and Delivery. These General Terms and Conditions of Business and Delivery form part of all contracts concluded between the Seller and its contractual partners (Buyer) for deliveries and services offered by the Seller. They also apply to any future deliveries, services and offers to be provided to the Buyer, even if the parties do not specifically agree on their application again.
(2) Terms and Conditions of Business of the Buyer or third parties do not apply, even if the Seller does not specifically reject their application from time to time. Even in the case that the Seller refers to a letter which contains or makes reference to such Terms and Conditions of Business of the Seller or a third party, this must not be deemed to constitute approval of such Terms and Conditions of Business.
2. Contractual relationship
(1) All offers of the Seller are made without engagement and are subject to change unless they are explicitly referred to as binding or indicate a specific time limit by which they must have been accepted by the Buyer. Orders issued by the Buyer are only deemed to have been accepted by the Seller if they are acknowledged by the Seller within 21 days from their delivery (“Zugang”1).
(2) The legal relationships between the contractual partners are exclusively governed by the written contract including these General Terms and Conditions of Business and Delivery and, as the case may be, by the annual agreement as amended from time to time and confirmed or approved by the Buyer. Such contracts contain and stipulate the entire understanding between the parties as regards the subject matter of the contract. Oral promises of the Seller made prior to the conclusion of this contract do not have any binding legal effect and any oral agreements between the parties will be superseded by the written contract unless it is explicitly agreed between the parties that such oral agreements continue in force and remain binding. Changes and amendments to the agreements made between the parties including these General Terms and Conditions of Business and Delivery require written form (“Schriftform”) to be valid. None of the employees of the Seller other than the managing directors (“Geschäftsführer”) and the “Prokuristen”2 of the Seller is authorized to make oral arrangements to the contrary. The electronic form is deemed to satisfy the written form requirement, too.
(3) The minimum order value is € 150. Orders below that value will not be processed. Ordered goods will only be delivered for the purpose of being sold. They are, in particular, not deemed to constitute goods for sale on commission.
(4) The Seller reserves the right to modify the composition of its products and exchange any individual agents contained therein, if and to the extent that this is required by law or for the purpose of quality and product improvement and such product modification does not entail any deterioration of the ordered goods as regards their quality and usability.
(5) The Seller retains title to and copyright of any and all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary material made available to the Buyer. The Buyer is not allowed, without the explicit consent of the Seller, to make these items or their contents available to third parties or disclose, use, copy or reproduce them or have them used, copied or reproduced through third parties. The Buyer is obliged to return these items in complete form to the Seller upon request and to destroy any copies made thereof provided that the Buyer is no longer in need of them in the ordinary course of business or in the case that negotiations do not lead to the conclusion of a contract.
3. Prices and payment
(1) The prices to be paid are those shown in the price list of the Seller as amended from time to time. Adjustments of the purchase prices and list prices will be communicated in writing by at least three months’ prior notice; any such adjustments will be deemed binding.
(2) The prices are paid for the scope of delivery or service provision specified in the order acknowledgement. Additional or special performance will be charged separately. Prices are in EURO, ex works (EXW incoterms 2010) plus packaging, statutory valueadded tax and – in the case of export – plus customs duties, fees and other public charges.
(3) Upon contract conclusion, the valid list prices of the Seller apply. In the event that delivery shall be performed more than four months after conclusion of the contract, the list prices valid at the time of delivery will apply.
(4) Payment shall be made by bank transfer only. Payment by bill or cheque will not be accepted as discharge of the payment obligation.
(5) Unless otherwise agreed in writing, invoices must be paid without deduction immediately. The date of invoice and the date of receipt of payment by the Seller will be decisive. To avoid any delay in the invoice amount being entered on the credit side, the date and number of the invoice as well as the customer number must be indicated for each payment. It can be agreed between the contracting parties that the Buyer is obliged to open a documentary letter of credit with a bank which is acceptable for the Seller. In such case, the letter of credit must be opened in accordance with the Uniform Customs and Practice for Documentary Credits, ERA/UCP 600, revised version of 2007.
(6) In the case of a delay in payment (“Zahlungsverzug”), the Buyer will be liable to pay default interest in the amount of 8 percentage points above the base interest rate according to § 247 BGB (Bürgerliches Gesetzbuch – German Civil Code); this is without prejudice to any further claims for compensation of damage incurred in the case of a delay in payment.
(7) The Buyer is only allowed to set off his counterclaims, if any, against the claims of the Seller or withhold payment with a view to such counterclaims if these counterclaims are undisputed or have been established by a final nonappealable court decision (res judicata).
(8) The Seller is entitled to rescind the contract if – after conclusion of the contract – the Seller becomes aware of circumstances which are deemed suitable to substantially reduce the creditworthiness of the Buyer and which endanger payment by the Buyer of the Seller’s outstanding claims from the respective contractual relationship (including claims from any other individual orders which are subject to the same master agreement).
4. Delivery and delivery times
(1) Delivery is made ex Seller´s works at Frechen (Germany) (EXW incoterms 2010).
(2) The terms and dates of delivery announced by the Seller are always deemed to be approximate only unless a fixed term or date of delivery has been explicitly promised or agreed between the parties. If the parties have agreed that the goods be dispatched, the indicated terms or dates of delivery refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.
(3) In the event that the Buyer fails to comply with his contractual obligations in the relationship with the Seller, the Seller is entitled – without prejudice to the rights and claims to which the Seller is entitled in the case of delay on the part of the Buyer – to demand the Buyer to grant an extension of the terms for delivery or service provision or to allow postponement of the dates agreed for delivery or service provision by the duration of the period of noncompliance by the Buyer.
(4) The Seller accepts no liability in the case that delivery is delayed or rendered impossible if and to the extent that the delay or impossibility is due to force majeure or other events which were not foreseeable upon contract conclusion (e.g. operational disturbances of any kind whatsoever, difficulties in material or energy procurement, delay in transport, strike, lawful lockout, shortage of manpower, energy shortage, raw material shortage, difficulties in obtaining any required official permits or authorizations, measures taken by authorities or lacking, incorrect or late delivery by subsuppliers) and which are not attributable to the Seller. If and to the extent that such events substantially impede the delivery or service provision or render it impossible and provided that such impediment is not a mere temporary one (duration of more than 3 months), the Seller will be entitled to rescind the contract. In the case of a mere temporary impediment, the terms for delivery or service provision will be extended or the dates agreed for delivery or service provision will be postponed by the duration of such impediment, plus a reasonable startup time. If and to the extent that the Buyer – in view of the delay – can no longer be reasonably expected to accept delivery or service provision, the Buyer will be entitled to rescind the contract by giving written notice to the Seller to that effect without undue delay (“unverzüglich”).
(5) The Seller is only entitled to make partial deliveries if
– the Buyer can reasonably use such partial deliveries for the contractually agreed purpose,
– delivery of the remaining ordered goods is secure and
– the Buyer does not incur substantial additional expenditure or additional costs (unless the Seller is willing to bear these costs).
(6) In the case that there is a delay (“Verzug”) in delivery or service provision by the Seller or if the delivery or service provision becomes impossible for any reason whatsoever, the liability of the Seller for damages will be limited in accordance with § 10 of these General Terms and Conditions of Business and Delivery.
5. Place of performance (“Erfüllungsort”), dispatch, packaging, passing of risk, acceptance and approval
(1) Unless otherwise agreed, the place of performance for all obligations under the contractual relationship is Frechen (Germany).
(2) The mode of dispatch and the packaging are subject to the duly exercised discretion of the Seller.
(3) The risk passes to the Buyer no later than upon handover of the goods to be delivered (whereby the time when the loading is started is decisive) to the forwarder, carrier or other third party entrusted with the transport. This also applies in the case of partial delivery or in the case that the Seller has agreed to perform additional services (e.g. dispatch). In the case of a delay in dispatch or handover which is due to circumstances the cause of which falls within the sphere of the Buyer, the risk will pass to the Buyer from the day when the Seller is ready for dispatch and has given notice to that effect to the Buyer.
(4) The goods will only be insured against theft, breakage, damage during transport, damage by fire or water and other insurable risks if this is explicitly requested by the Buyer in which case the cost of such insurance will be at the expense of the Buyer.
(5) The weight of each consignment must be checked immediately. Deviations in the weight must be documented in the consignment note to enable the assertion of compensation claims against the carrier.
(6) Deliveries to central warehouses are made by means of sorted pallets (EUR-pallets). Only pallets are used which correspond to the quality classification and the application recommendation (new, class A, class B) regarding their use in engineered facilities according to the Gütegemeinschaft Paletten e.V. Düsseldorf (pallet quality association) and GS1 Germany GmbH, Cologne. Open pool pallets (EUR-pallets) are to be exchanged concurrently (“Zug um Zug”) for the same number of pallets of equal kind and quality at the place of delivery.
6. Retention of title
(1) Retention of title as is agreed hereinafter is intended to secure all current and future claims of the Seller against the Buyer existing from time to time under the supply relationship between the contractual partners for the delivery of products of the Hünemeyer group (including balance claims from any current account relationship which exclusively refers to this supply relationship).
(2) The goods delivered by the Seller to the Buyer remain property of the Seller until full payment of all secured claims. The goods and those goods which will take their place according to the provisions of this section and which are subject to retention of title are hereinafter referred to as goods subject to retention of title.
(3) The Buyer keeps the goods subject to retention of title in custody for the Seller at no expense to the Seller.
(4) The Buyer is allowed to process and resell the goods subject to retention of title in the orderly course of business, subject to the occurrence of a case where the Seller is entitled to realize the goods (see subs. 9). The Seller is not allowed to pledge or transfer the goods subject to retention of title by way of security.
(5) In case the goods subject to retention of title are processed by the Buyer, it is agreed that such processing is deemed to be carried out by order and on behalf of the Seller as the manufacturer and that the Seller will immediately acquire ownership or – in the case that the goods are processed by using materials belonging to several different owners or if the value of the processed item is higher than that of the goods subject to retention of title – co-ownership of the newly created item in the proportion of the value of the goods subject to retention of title to the value of the newly created item. In case the Seller does not acquire ownership in either of the aforesaid ways, the Buyer already now transfers to the Seller his future ownership resp. co-ownership – in the proportion described above – of the newly created item by way of security. In the case that the goods subject to retention of title are combined with other items or inseparably mixed with them in such a way that one single unitary new item is created and if – in either case – one of the other items is to be deemed the main item, the Buyer will – if such main item belongs to the Buyer – transfer co-ownership of the unitary new item to the Seller on a prorata basis, in the proportion described in clause 1 of this subs.
(6) In case the goods subject to retention of title are resold, the Buyer already now assigns to the Seller by way of security the claim against the purchaser arising from such resale; in the case of co-ownership of the Seller of the goods subject to retention of title, such assignment will be made on a prorata basis, proportionately to the respective co-ownership share. The same applies to any other claims which take the place of the goods subject to retention of title or arise otherwise with regard to the goods subject to retention of title, such as insurance claims or claims in tort in the case of loss or destruction. The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller on the Buyer’s own behalf for the account of the Seller. The Seller is only entitled to revoke such authority to collect the claims if a case occurs where the Seller is entitled to realize the goods.
(7) In the event that a third party tries to take hold of the goods subject to retention of title, in particular by way of seizure, the Buyer will without undue delay (“unverzüglich”) inform such third party of the Seller´s ownership and will also notify the Seller to enable the Seller to protect and enforce its property rights. In the case that the third party is not able to reimburse the Seller for the judicial and extrajudicial costs arising in connection therewith, the Buyer will be liable to the Seller for the reimbursement of such costs.
(8) The Seller will – upon request – release, at its own choice, the goods subject to retention of title as well as the items or claims taking their place, if and to the extent that their value exceeds the amount of the secured claims by more than 50 %.
(9) In the event that the Seller rescinds the contract for breach of contract by the Buyer – in particular in the case of a delay in payment (occurrence of a case where the Seller is entitled to realize the goods), the Seller will be entitled to demand return of the goods subject to retention of title.
(10) Any agreed share in the costs incurred for the marketing of the Seller’s products by means of flyers, prospectuses or other direct or indirect media of the Buyer will only be paid after the agreed measure in the form of product presentation, secondary display etc. has been implemented completely. The right to the cost share will lapse in the case of non-provision of the agreed consideration.
Complaints for damage or loss of the goods during the transport must be taken down and attested by the deliverer. Transport insurance claims can only be asserted in favour of the Buyer if the aforesaid notice attesting the loss or damage is sent to the Seller.
8. Right of return
If a right of return was agreed with the Buyer in writing, the goods will be returned resp. a credit entry will be made in favour of the Buyer after the Seller has received the goods in faultless condition as stipulated in the contract, return carriage paid, subject to the following deductions:
– discounts as originally granted at the time of delivery;
– 30 % reconditioning costs, to be calculated on the basis of the net amount.
9. Recall procedures (recall of goods)
(1) The Buyer is only allowed to recall goods by unilateral announcement after having considered all possibilities available within the limits of the Buyer’s statutory obligations and provided that the recall appears to be indispensable to prevent hazards. The Buyer undertakes to only recall goods on his own after consultation with the Seller. The scope and content as well as the communication of the measures to be taken to the authorities and the public must be agreed and coordinated between the Seller and the Buyer. Consultation may only be omitted for good cause. The obligation to consult does not give rise to a special relationship of obligations between the Buyer and the Seller. Costs and expenses incurred by the Buyer as a result of a recall initiated on his own will not be borne by the Seller unless the Buyer is entitled by law to claim reimbursement of such expenses. In this case, only necessary and foreseeable expenses will be reimbursed by the Seller. In the case of a product recall, no flatrate damages will be paid.
(2) The Seller will adequately notify the Buyer of any product recall initiated on its own.
(1) The warranty period is two years from delivery, but does in no case go beyond the useby date of the respective product.
(2) The delivered goods must be examined carefully without undue delay (“unverzüglich”) after handover to the customer or the third party determined by the customer. The goods are deemed accepted and approved unless notice of apparent defects or other defects which could reasonably have been detected in the course of an immediate careful examination of the goods has been delivered (“zugegangen”3) to the Seller in the form prescribed in § 2 (2) within seven working days (“Werktage”) from delivery of the goods or otherwise within seven working days (“Werktage”) from detection of the defect or from the time when the defect could reasonably have been detected by the customer without closer examination in the context of normal use of the delivered goods. The product to which such notice of defect refers is to be returned, carriage paid, to the Seller upon the Seller’s request. If the complaint for defect is justified, the Seller will reimburse the Buyer for such amount of the cost of return as equals the cost for the cheapest mode of return dispatch; this does not apply in the case that the said costs increase due to the fact that the product in question is kept in a place other than that where the product is regularly intended to be used.
(3) In the case of a defect in quality of the delivered goods, the Seller is obliged and entitled to first perform – at its choice which is to be made within a reasonable period of time – either subsequent remedy (“Nachbesserung”) or substitute delivery (“Ersatzlieferung”). In the case that such subsequent remedy or substitute delivery fails, i.e. is impossible or reasonably unacceptable or unreasonably delayed or refused by the Seller, the Buyer is entitled to rescind the contract or reduce the purchase price by an adequate amount.
(4) If the defect is due to the Seller’s fault (intentional or negligent conduct), the Buyer is entitled to claim damages under the conditions set forth in § 11.
11. Liability for damages based on the Seller’s fault
(1) The liability of the Seller for damages, regardless of the legal cause, including but not limited to the liability for impossibility, delay in delivery or service provision, defective or wrong delivery, breach of contract, culpa in contrahendo and tort, is limited according to the provisions of this section, if and to the extent that such liability is based and depends on the Seller’s fault.
(2) The Seller accepts no liability for a) simple negligence of its executive bodies (“Organe”), legal representatives, employees or other vicarious agents or persons employed by the Seller in the performance of its contractual obligations (“Erfüllungsgehilfen”); b) gross negligence of its nonexecutive employees or other vicarious agents or persons employed by the Seller in the performance of its contractual obligations (“Erfüllungsgehilfen”), except in the case of breach of fundamental contractual duties (“vertragswesentliche Pflichten”). Such fundamental contractual duties are deemed to comprise the obligation to ensure timeous and faultless delivery and installation of the goods as well as the obligations to render advice, protect and exercise proper care which are intended to enable the Buyer to use the goods for the purposes agreed under the contract or to protect life and limb of the personnel of the Seller or a third party or to protect the property of the Buyer from substantial damage.
(3) If and to the extent that the Seller is deemed liable for damages on the merits under § 11 (2), such liability is limited to such damages as were foreseen by the Seller upon conclusion of the contract as a possible consequence in the case of a breach of contract or which the Seller could reasonably be expected to foresee when exercising ordinary care and considering all circumstances which were known to the Seller or which the Seller could reasonably be expected to know. Moreover, indirect or consequential damage resulting from a defect of the delivered goods will only be eligible for compensation if and to the extent that such damage is expected to typically occur when using the delivered goods in accordance with their intended purpose.
(4) In the case of liability for simple negligence, the liability of the Seller is limited to the amount of € 1,500,000 for each single case of damage to property and to the amount of € 5,000,000 for each single case of personal injury (according to the current coverage of the Seller´s product liability insurance or general liability insurance), even in the case of breach of a fundamental contractual duty (“vertragswesentliche Pflicht”).
(5) The preceding nonliability clauses and limitations of liability likewise apply in favour of the executive bodies (“Organe”), legal representatives, employees and other vicarious agents or persons employed by the Seller in the performance of its contractual obligations (“Erfüllungsgehilfen”).
(6) The limitations contained in this section do not apply to the Seller’s liability for intentional conduct, for guaranteed quality features, for an injury of life or limb or health or in the case of liability under the “Produkthaftungsgesetz” (German Product Liability Act).
(7) Lumpsum reimbursement of expenses and/or lumpsum damages or lumpsum contractual penalties are subject to explicit individual agreement which may not be deemed included in any General Terms and Conditions of Business or framework agreements or any other unspecific generalized arrangement.
12. Final provisions
(1) Place of jurisdiction for any and all disputes arising from the business relationship between the Seller and the Buyer is Cologne, Germany. This is without prejudice to any mandatory statutory provisions stipulating places of exclusive jurisdiction.
(2) The relationships between the Seller and the Buyer are exclusively governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) In the case of a gap in the contract or these General Terms and Conditions of Business and Delivery, such legally valid provisions are deemed agreed to fill these gaps as would have been agreed by the contractual partners with regard to the economic purpose of the contract and the purpose of these General Terms and Conditions of Business and Delivery if the contractual partners had been aware of the gap.
Please note: The Buyer is aware that the Seller will store data relating to the contractual relationship in accordance with § 28 “Bundesdatenschutzgesetz” (German Federal Act on Data Protection) for data processing purposes and that the Seller reserves the right to disclose such data to third parties (e.g. insurance companies), if and to the extent that this is required for the performance of the contract.
13. Arbitration clause
(1) If the Buyer is domiciled outside Germany, any and all disputes arising from or in connection with the contract or with respect to its validity will be settled by final decision of an arbitral tribunal in accordance with the Rules of Arbitration of the German Institution of Arbitration (“Schiedsgerichtsordnung der Deutschen Institution für Schiedsgerichtsbarkeit e.V. – “DIS)”; ordinary jurisdiction is precluded.
(2) The arbitration proceedings will be held in Germany. In the case of a value in dispute of up to 100,000 EUR, the arbitral tribunal will consist of a sole arbitrator. In the event that the parties are unable to designate and agree on an arbitrator, they will request appointment of the arbitrator by the DIS Appointing Committee (“DIS-Ernennungsausschuss”). In the case of a value in dispute of more than 100,000 EUR, the arbitral tribunal will be composed of three arbitrators. German law will be the governing substantive law.
(3) The arbitration proceedings will be held in English.
(4) In the arbitration proceedings, evidence will be taken in accordance with the IBA Rules on Taking of Evidence in International Commercial Arbitration. These Rules apply in their respective version valid at the time of the initiation of such proceedings.