of Heydebreck GmbH, Forstern
Unless expressly agreed otherwise in writing, the following conditions apply exclusively to our sales and deliveries. These general terms and conditions (GTC) only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in any case, for example even if we carry out the delivery to the customer without reservation, knowing the general terms and conditions of the customer. The General Terms and Conditions apply in their current version as a framework agreement for future contracts for the sale and/or delivery of movable items with the same customer, without us having to refer to them again in each individual case; In this case, we will inform the customer immediately about changes to our General Terms and Conditions.
1.1. Our offers are non-committal and non-binding. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form.
1.2. We reserve the right to make offers, design changes and/or use other materials without reducing quality.
1.3. We reserve the right of ownership and copyright to all cost estimates, drawings and other documents provided with offers; they may not be made accessible to third parties and must be returned immediately upon request if the order is not placed with us.
1.4 The ordering of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 14 days of receipt.
Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
3.1. All prices are rec. sales prices; they are understood to be ex works without packaging and assembly and plus statutory sales tax.
3.2. Insofar as the agreed prices are based on our list prices and the delivery is to take place more than four months after the conclusion of the contract, our list prices valid at the time of delivery apply (in each case minus an agreed percentage or fixed discount).
4.1. Delivery is ex warehouse, which is also the place of performance. At the request and expense of the customer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Dispatch and transport takes place at the expense and risk of the customer; the same applies to returns. The type of shipment and means of shipment are determined by us according to expediency, without any liability for the cheapest and fastest shipment.
4.2. The risk of accidental loss and accidental deterioration of the goods is transferred to the customer at the latest when the goods are handed over. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred when the goods are delivered to the forwarding agent, carrier or other person or institution responsible for carrying out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the customer is in default of acceptance.
4.3. One-way packaging will be invoiced and not taken back.
4.4. Insurance against transport damage is only provided on the basis of the customer's written instructions and at his expense.
4.5 If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation i. hv EUR 15 per calendar day, starting with the delivery period or – if there is no delivery period – with the notification that the goods are ready for dispatch. The flat-rate compensation is limited to a maximum of 5% of the purchase price.
Evidence of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The customer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the above flat rate.
4.6 The rights of the customer according to § 11 of these General Terms and Conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of the service and/or subsequent performance) remain unaffected.
4.7 If the customer is in arrears with the settlement of any debt from the entire business relationship, we are only obliged to deliver against cash payment or other security of the purchase price and other payment obligations.
5. Delivery time
5.1. The delivery time begins when the order confirmation is sent, but not before the customer has provided the documents and approvals to be procured and the agreed down payment has been received. The delivery time is met if the delivery item has left the factory by the time it expires or readiness for dispatch has been notified.
5.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we will inform the customer of this immediately and at the same time communicate the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the customer.
5.3. The occurrence of unforeseen events that are beyond our control (e.g. force majeure, lack of raw or auxiliary materials, labor shortage, court order) extends the delivery period appropriately without the customer being entitled to withdraw from the contract or any claims to assert. This also applies if the aforementioned circumstances occur during an already existing delay.
5.4. Goods on consignment are to be settled monthly under sales report. After the agreed commission period has expired, the goods must be accepted.
6.1. Our invoices are payable within 30 days of the invoice date and receipt of the goods without any deductions or with a cash discount in the specified amount. The due date is not postponed if goods that have been reported as ready for dispatch are not dispatched through no fault of our own.
6.2. Checks and bills of exchange, subject to their discountability, are only accepted on the basis of special agreements and only on account of performance, with all costs and expenses being charged. The credit notes are made on the day on which we can freely dispose of the equivalent value, regardless of earlier due dates in the event of default by the customer. No liability is assumed for the timely presentation, protest, notification and return of unpaid bills of exchange or checks.
6.3. We are entitled to carry out outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to significantly reduce the customer's creditworthiness and which prevent the customer from paying our outstanding claims the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
6.4. With the expiry of the above payment period, the customer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. In the case of partial delivery, payment can be demanded for each partial delivery in accordance with the above conditions.
Offsetting against counterclaims by the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
7.1. The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse in accordance with §§ 478, 479 BGB) remain unaffected.
7.2 If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (§ 434 Para. 1 Clause 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).
7.3 The customer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is found during the inspection or later, we must be notified immediately in writing. The notification is deemed to be immediate if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to examine and give notice of defects, the customer must report obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or notification of defects, our liability for the non-notified defect is excluded.
7.4 If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the statutory requirements remains unaffected.
7.5 The customer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance includes neither the removal of the defective item nor the reinstallation if we were not originally obliged to install it.
7.6 We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if there is actually a defect. However, if a customer's request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the customer.
7.7 If the subsequent performance has failed or a reasonable period of time to be set by the customer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
7.8 Claims by the customer for damages or reimbursement of wasted expenses only exist in accordance with Section 8 and are otherwise excluded.
8. Limitation of Liability
8.1 Claims for damages by the customer due to obvious material defects in the delivered goods are excluded if the customer does not notify us of the defect within a period of two weeks after delivery of the goods.
8.2 Otherwise, the customer's claims are also excluded with the exception of claims for damages by the customer from injury to life, limb, health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages that are based on intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
8.3 In the event of a breach of essential contractual obligations, we are only liable for the contractually typical, foreseeable damage if this was caused simply by negligence, unless the customer is concerned with claims for damages resulting from injury to life, limb or health.
8.4 The restrictions of paragraphs 1 and 2 also apply to our legal representatives and vicarious agents if claims are asserted directly against them.
8.5 The provisions of the Product Liability Act remain unaffected.
9. Retention of Title
9.1. We reserve ownership of the goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
9.2. The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
9.3. If the customer acts in breach of contract, in particular if the purchase price due is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the customer a reasonable deadline for payment or setting such a deadline is unnecessary under the statutory provisions.
9.4. The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The customer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, does not default in payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
10. Statute of limitations
10.1 Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
10.2 However, if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory regulation (§ 438 Para 1 No. 2 BGB). Statutory special regulations for third-party restitution claims (§ 438 Para. 1 No. 1 BGB), fraudulent intent on the part of the seller (§ 438 Para. 3 BGB) and for claims in supplier recourse in the case of final delivery to a consumer (§ 479 BGB) also remain unaffected.
10.3 The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation of the product liability law remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the buyer in accordance with Section 8
11. Place of Performance, Place of Jurisdiction
11.1. Place of performance for all mutual obligations is Erding.
11.2. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Erding, provided the customer is a merchant, a legal entity under public law or a special fund under public law.
12. Final Provisions
12.1. The customer is prohibited from making any changes to the delivered goods, including any markings that could give the impression that a special product and/or a mark of origin of the customer or a third party is present.
12.2. Our legal relationships with the customer are exclusively subject to German law to the exclusion of the UN Sales Convention (CISG).
12.3. If individual provisions of these terms and conditions are or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to immediately agree on a new effective provision that comes as close as possible to the economic purpose of the ineffective one.
12.4. The direct or indirect export of our products requires written consent.
12.5. We reserve the right to make technical changes.