General Terms & Conditions

General Terms and Conditions of sale and delivery (B2) Valid as of: February 2009


1 General Terms and Conditions
2 Entry into effect and termination of the Contract
3 Prices and payment conditions
4 Conditions of Delivery and Shipment as well as passing of Risk
5 Call orders
6 Force majeure
7 Delayed performance
8 Reservation of ownership
9 Liability for Defects
10 Liability
11 Limitation
12 Set-off, withholding, assignment
13 Applicable law, exclusive jurisdiction

1 General Terms and Conditions

1.1
These Terms and Conditions of Heinz Soyer Bolzenschweißtechnik GmbH (hereafter referred to as “the Seller”) apply to all sales, deliveries and services of the Seller to contractors under the terms of § 14 of the BGB (Civil Code), hereafter referred to as “the Client“. Application of the Client’s own Terms and Conditions is hereby excluded, in the absence of express stipulation of the validity thereof. The present Terms and Conditions of Sales and Delivery shall continue to apply exclusively, even in the event of Seller delivery to the said Clients with full knowledge of conditions contradicting or deviating from the present Terms and Conditions and without express reserve.

2 Entry into effect & termination of the Contract

2.1
The product descriptions and price lists of the Seller are without engagement unless they form the object of a contractual agreement.

2.2
A Purchase Contract only arises upon Seller confirmation of the order in written or text form. Products may also be ordered through the Seller’s online-shop. By the act of clicking the “Order” button, the Client makes a binding purchase offer; a contract only arises upon Seller confirmation of the order (in written or text form).

2.3
In the event of stipulation of special conditions by the Parties, the said special conditions do not apply to contractual relationships running simultaneously or in the future with the Client.
2.4
In the event of Client economic incapacity to fulfil his obligations to the Seller, the Seller shall be entitled to terminate all existing exchange contracts with the Client by means of withdrawal and/or, with regards to continuing obligations, by cancellation without notice. This also applies in the event of Client insolvency, without prejudice to § 321 of the Civil Code and § 112 of the InsO (Insolvency Statute). The Client shall inform the Seller in writing, in due time, of the likelihood of insolvency.

3 Prices and payment conditions

3.1
The prices displayed by the Seller are to be understood as net euro prices, plus the legal German value added tax. The costs of packaging and posting, shipping, insurance (particularly, transport insurance), customs duties and fees will be calculated separately.
3.2
The purchase price is to be paid cash within 30 days of date of invoice, without deduction. In the event of receipt of payment within 10 days of the date of invoice, the Seller agrees to grant the Client a 2% discount, unless the Client is in arrears to the Seller on other obligations. Subparagraph 3.2 applies solely to the sale of goods.
3.3
Payments shall be deemed received upon crediting of the counter-value to any account of the Seller. In the event of late payment, the Seller shall be entitled to interest for delay at the rate of 10 percentage points above the respective base interest rate, without prejudice to any other legal rights of the Seller. With regards to any invoices past due, incoming payments will be credited first to any costs and interest, and then to the oldest demand.
3.4
In the event of unforeseeable cost increases (for example, currency fluctuations, unexpected price increases of the Supplier etc.), the Seller shall be entitled to pass the price increase on to the Client. This shall, however, only apply for deliveries to be made, by agreement, more than four months after conclusion of the Contract.

4 Conditions of Delivery and Shipment

4 Conditions of Delivery and Shipment as well as Passing of Risk

4.1
In relation to the purchase of several articles in response to different quotations, the Seller, on technical grounds, shall be entitled to refrain from making an all-in-one delivery. The Seller shall furthermore be entitled to make partial deliveries, including by means of extraordinary fixed delivery dates, insofar as reasonable for the Client. In the event of permissible partial deliveries, the Seller shall furthermore be entitled to issue partial invoices.
4.2
Delivery of the objects of the agreement shall be by regular mail order, in which case the choice of shipping route and method of shipping shall be left up to the Seller. The indicated delivery times and dates are without engagement, in the absence of Seller confirmation of a binding delivery date and/or time.
4.3
The risk of accidental loss and/or deterioration of the objects of the agreement shall be deemed transferred to the Client upon transfer of the objects of the agreement to a suitable shipper, even if the Seller pays the cost of shipping. Shipping insurance will be taken out only at special Client request and at the Client’s expense. If the Seller is responsible for installation and assembly, the risk shall be deemed transferred to the Client upon termination of all installation and assembly work and transfer to the Client.
4.4
If delivery is impossible, for example, because the objects of the agreement will not go through the Client’s entranceway or up the stairs, or because the Client cannot be located at the delivery address indicated by him, despite notification of the delivery date to the Client in due time, the Client shall be liable for the costs of the unsuccessful delivery, plus a lump sum compensation for delay. The said compensation shall, for each full week of delay, amount to 1% , not to exceed 8%, of the value of the all-in-one delivery or the unaccepted fraction of the all-in-one delivery, without prejudice to the right of the Parties to prove greater or lesser prejudice.
4.5
If shipment of the delivery to the Client is delayed for reasons above and beyond the Client’s control, the passing of risk shall be deemed to have occurred upon notification of readiness for shipment to the Client. Any storage costs incurred after the Transfer or Risk shall be charged to the Client.

5 Call orders

5.1
Call orders must be picked up at the latest 12 months after the call order date, and are to be paid in full.
5.2
If more favourable graduated prices are agreed based on the total quantity of the call order, the Seller shall be entitled to a price adjustment corresponding to the scales of volume if the purchaser fails to take the entire quantity for reasons not above and beyond his control.
5.3
Following expiration of the call order period, the Seller shall, following written notice to the purchaser of the establishment of a grace period, be entitled to withdraw from the contract, to the extent of the quantities not yet accepted, and to demand compensation for prejudice insofar as permissible by law.

6 Force majeure

In the event of circumstances of force majeure having an effect upon contractual fulfilment, the Seller shall be entitled to postpone delivery for the duration of the impediment and, in the event of longer-term delay, to withdraw, in whole or in part, without liability for damages against the Seller. The term “force majeure” shall be understood to refer to events which could not have been foreseen by the Seller, or – even if foreseeable – above and beyond the Seller’s control, the effects of which on contractual fulfilment could not have been prevented by any reasonable effort on the part of the Seller. This shall be without prejudice to the possibility of legal claims of the Client.

7 Delayed performance

7.1
In the event of delayed performance, the Client, within the framework of the legal conditions, shall only be entitled to withdraw when the delay is attributable to fault on the part of the Seller.
7.2
In the event of delay by the Seller, the Client, at the Seller’s request, shall be required to declare, within a suitable period of time, whether he wishes to withdraw from the Contract due to the delay in delivery, or whether he insists on delivery.
7.3
If shipment or delivery at the Client’s request is delayed by more than one month following notification of readiness for shipment, the Client may be charged storage costs at the rate of 0.5% of the price of the object of delivery for each additional month, or part of the same, not to exceed a total of 5%.
7.4
The contractual parties shall be free to prove higher or lesser prejudice.
7.5
The above limitations of liability shall not apply in the event of malice, bad faith or claims arising from death, injury to body or health.

8 Reservation of ownership

8.1
The Seller reserves ownership of the contractual services pending payment in full of any compensation due. The Seller furthermore reserves ownership pending fulfilment of all claims arising from the business relationship with the Client.
8.2
In the event of processing of the delivered goods, the Seller shall be considered equivalent to the Manufacturer, and shall acquire ownership of the newly arising goods. If the said processing occurs together with other materials, the Seller shall acquire ownership thereof in proportion to the invoice values of his goods, up to the value of the other materials. If, in the event of compounding or mixing of the goods to the Seller with materials or goods owned by the Client, the said materials or goods shall be deemed the main point, and the joint ownership to the said material or property shall be transferred to the Seller, in proportion to the invoice value of the goods of the Sellers up to the value of the invoice, or in the absence of an invoice, up to the market value of the main point. In such cases, the Client shall be considered the depository.
8.3
Objects under reservation of ownership or legal reservation may neither be pledged by the Client nor granted as collateral. Resale by the Client shall only be permitted when acting as the reseller in the ordinary course of business, on the condition of effectual assignment by the Client, to the Seller, of his claims against the Client’s purchaser, in relation to the resale, in which case the Client transfers the said ownership to the purchaser under reservation of payment. The Client, upon conclusion of the contract, shall be deemed to have waived his claims to the said resale, against his purchaser, as security to the Seller, who simultaneously accepts the said waiver.
8.4
The purchaser shall notify [the Seller] of any access to the Seller’s goods held in ownership or joint ownership, or to the assigned claims. The purchaser shall pay all sums collected by him, immediately, to the Seller, insofar as the said sums are due and payable.
8.5
To the extent that the value of the Seller’s security interest in the collateral exceeds the secured claims by more than 10%, the Seller, at the Client’s request, shall release a corresponding proportion of the security interest in the collateral.

9 Liability for Defects

The Seller shall be liable for material and defects of title, as follows:

9.1
A non-essential defect shall not be deemed to justify claims for defects, and shall not entitle the Client to refuse acceptance of the objects of the agreement. If some of the objects of the agreement exhibit a non-essential defect, said fact shall not justify rejection of the delivery as a whole. This shall not apply if the partial delivery is of no interest to the client. Furthermore, Client payment may only be withheld to an extent suitably proportional to the material defect. If the goods are left without payment, the Seller shall only be liable for defects insofar as due to malice or gross negligence.
9.2
Claims for defects are excluded for normal wear and tear or prejudice suffered after passing of risk as a result of erroneous or negligent handling, excessive stress, unsuitable resources or special, extraneous influences, unless anticipated in contract, or for non-reproducible malfunctions. Claims for defects, or any consequences thereof, shall be likewise excluded in the event of improper modifications or repair work performed by the Client or third parties, unless the Client can prove that the malfunction forming the object of the complaint was not caused by the said modifications or repair work.
9.3
If the object of the agreement consists of used materials or goods, there shall be no rights and entitlements for defects.
9.4
The limitation period for claims for defects shall be one year from passing of risk. Supplementary performance (new consignment or rework) may only affect the limitation period for the defect triggering supplementary performance.
9.5
The above mentioned limitations on liability and expiration of the limitation period referred to in numbers 9.1, 9.3 and 9.4 above shall not be deemed to relate to claims of recourse according to § 478 of the Civil Code, or to claims for prejudice and compensation for costs brought by the Client under the provisions of the Law for Defects. These claims shall be governed by the terms of subparagraph 10.
9.6
If the Client is a merchant under the terms of § 1 of the Commercial Code, he shall be subject to the commercial duty to inspect the goods and object to any defects according to § 377 of the Commercial Code. If the Client neglects to comply with the above mentioned obligations, the objects of the agreement shall be considered rejected, except in relation to hidden defects.
9.7
In the event of supplementary performance, the Seller shall be entitled to choose between rework or replacement.
9.8
In the event of supplementary performance by replacement, the Client shall return the objects of the agreement first delivered to him, to the Seller, within 30 days. The return package must indicate the grounds for the return, as well as the name of the Client and the number issued in relation to the purchase of defective goods, permitting the Seller to process the returned goods. If, and to the extent that, the goods are returned for reasons above and beyond the control of the Seller, the Seller shall not be required to accept the returned goods forming the object of the agreement or to reimburse the sales price. In such case, the costs of renewed shipment shall be charged to the Client.
9.9
If the Seller has delivered an item without defects for purposes of supplementary performance, the Seller shall be entitled to compensation for use by the Client according to § 346 paragraph 1 of the Civil Code, without prejudice to other legal claims.

10 Liability

10.1
The Seller shall be liable to the Client for compensation for prejudice and costs arising on any legal grounds, as follows:
10.2
With regards to non-negligent violations of any obligation, liability for the contract shall be limited to the total value of the order. With regards to violations of important rights arising as the result of minor negligence under the terms of § 307 paragraph 2 subparagraph 2 of the Civil Code, liability shall be limited to prejudice foreseeable at the time of conclusion of the contract.
10.3
With regards to data loss, the Seller shall only be liable for costs which would have been required and incurred by the Client for data restoration with proper and regular data protection. The present limitation shall not apply when, and to the extent that, data protection forms an integral part of the services to be performed by the Client.
10.4
The limitations of liability shall not apply to claims for malice and gross negligence and claims arising from injury to life, body and health, insofar as covered by the Product Liability Law, or in relation to warranties, unless otherwise stipulated.

11 Limitation

All client claims against the Seller – with the exception of claims under subparagraph 9 shall lapse within one year of the discovery thereof, or, at the latest, within five years of performance of the service. This does not apply to malice, bad faith or insofar as covered by the Product Liability Law.

12 Set-off, withholding, assignment

12.1
The Client shall only be entitled to a set-off if the counterclaim is undisputed, legally established or acknowledged by the Seller.
12.2
The Client shall be barred from asserting any right of withholding and/or right to withhold performance unless the underlying counterclaims are legally established and/or undisputed by the Seller.
12.3
The Client shall be barred from assigning any of the claims arising from the contract concluded with the Seller, particularly, Client claims for defects.

13 Applicable law, exclusive jurisdiction

13.1
All legal relationships between the contractual parties shall be governed by the laws of the Federal Republic of Germany, with the exception of those laws regarding the international purchase of movable goods.
13.2
Provisions of § 312 e and paragraph 1 subparagraphs 1 - 3 of the Civil Code shall not apply.
13.3
If the Customer is a merchant, a legal public-law entity or a public-law separate funds corporation, all disputes arising from the present contract shall be laid before the courts of the headquarters of the Seller. The same provision shall apply if the Client has no general jurisdiction in Germany, or if his residence or usual abode is unknown at the time the action is filed. This shall be without prejudice to the right to petition the courts of other jurisdictions as well.