GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
§ 1 Scope of Application
(1) Any supplies made by HOMAPAL GmbH (Seller) shall be subject exclusively to these General Terms and Conditions of Sale and Delivery (General Terms) unless Seller has given its express written approval to other terms and conditions. These General Terms apply even if Seller supplies the goods or accepts the order without reservation in the knowledge that buyer‘s general terms contradict or differ from Seller‘s General Terms.
(2) These General Terms only apply if buyer is an entrepreneur (as defined in § 14 German Civil Code (Bürgerliches Gesetzbuch)), a legal entity under public law or a special fund under public law.
(3) These General Terms also apply to all future contracts with buyer on the sale and/or supply of movable items without Seller having to refer to them in each individual case.
§ 2 Offer, Conclusion of Contract
(1) Seller‘s offers are non-binding and subject to confirmation unless otherwise indicated in the offer.
(2) Any statements made by Seller about the goods, in particular but not limited to colours, dimensions, weights and visual representations thereof (e.g. drawings and illustrations) are only approximately representative unless the contractually agreed purpose to which the goods are to be intended requires precise compliance. They do not constitute guaranteed attributes (garantierte Beschaffenheitsmerkmale) and are merely descriptions or designations of the goods or services to be provided. Differences and discrepancies which are standard in the trade which arise as a result of legal requirements or technical improvements are permitted in as far as they do not impair suitability for the contractually agreed purpose.
(3) Seller reserves all ownership rights and copyrights with respect to drawings, graphics, plans, calculations, product descriptions and other documents. These documents may only be used in connection with the performance of contractual duties and may not be disclosed to third parties without Seller‘s explicit prior written consent.
(4) Buyer‘s order is a legally binding invitation to enter into a contract.
(5) A contract for the supply of goods has not been concluded until the Seller has confirmed it in writing. The content of such confirmation is binding for the content of the contract. This content shall form the basis of the contract unless buyer objects without undue delay. If no confirmation is issued, the contract (for which these General Terms apply) shall be concluded by placing at disposal the goods. In such case, buyer waives the receipt of a written confirmation.
§ 3 Prices/Terms of Payment
(1) Unless otherwise agreed upon in an individual case, all of Seller‘s prices shall be deemed to be „EXW Herzberg” (Incoterms 2010) plus the statutory VAT rate at the time of the invoice.
(2) In general the prices which apply shall be those which prevail when the contract is concluded. Changes in price are permitted if there is more than four months between the date on which the contract is concluded and the agreed date of delivery. If wages or material costs increase thereafter but before the date of completion Seller may increase the price by a reasonable amount to match the increases in costs. Buyer may only withdraw from the contract if the price increase exceeds the rise in the general costs of living between the date of order and date of despatch by a not insubstantial amount.
(3) Invoices shall be payable within 14 days of delivery of the goods and date of invoice without deductions. Notwithstanding the above, Seller is entitled to make delivery dependent on concurrent payment without giving reasons.
(4) Buyer is in default on expiry of the term for payment stated in (3). If buyer is in default Seller may demand default interest of 8 percentage points above the base interest rate. This has no effect on Seller‘s entitlement to commercial maturity interest (§ 353 German Commercial Code (Handelsgesetzbuch). This does not exclude Seller‘s right to claim for further damages. Moreover, in the event that buyer defaults on a payment or part-payment Seller may declare the entire balance owed due for immediate payment.
(5) All payments must be in Euros.
§ 4 Reservation of Title
(1) Seller reserves ownership in the goods supplied until payment of all claims already incurred at the time of respective conclusion of contract.
(2) Buyer shall insure the reserved goods adequately against the risk of fire, water damage and theft on a replacement-value basis at its own cost.
(3) Buyer shall store reserved goods separately from other goods of the buyer or third parties and shall label and mark them as being the property of Seller.
(4) Buyer is entitled to re-sell and/or process the reserved goods in the ordinary course of business.
(5) Buyer hereby assigns to Seller any claims which it may have from resale of reserved goods (including amounts due from insurance claims or claims arising from tortious acts in the event of loss or destruction). Seller accepts such assignment. Buyer may collect the assigned claims as long as it fulfils its payment obligations. If buyer defaults on payment Seller may revoke buyer‘s right to collect. In this event, at Seller‘s request buyer shall provide whatever information is necessary to permit collection and to permit a person acting on Seller‘s behalf to verify the validity of the assigned claim against the bookkeeping and inform the debtors of the assignment.
(6) If buyer has processed the reserved goods the parties hereby agree that such processing shall be carried out in the name and for the account of the Seller as manufacturer and the Seller shall acquire title or – if the processing involves materials of more than one owner or if the value of the processed product is higher than the value of the goods supplied – co-title in the newly created item pro rata based on the ratio of the value of the goods supplied to the value of the newly created item. If the Seller forfeits its title as a result of combining or processing or if, in the event of processing, it does not acquire title in the goods supplied, buyer hereby transfers to Seller in advance co-title in the new item created corresponding pro-rata to the value of the portion supplied by Seller. Seller hereby accepts this offer. Handover shall be replaced by custody free-of-charge.
(7) The goods supplied which are subject to reservation of title may not be pledged to third parties or transferred by way of security until the secured claims have been paid in full. Buyer shall notify Seller without undue delay if third parties exercise claims on Seller‘s property.
(8) Seller shall release the securities to which it is entitled at buyer‘s request if they exceed the value of the claims which they secure, in as far as these have not been settled, by more than 10 %. The securities to be released shall be selected by Seller.
§ 5 Shipping
(1) Unless otherwise agreed upon in an individual case by Seller and buyer, the goods shall be shipped “EXW Herzberg“ (Incoterms 2010). At the request and expense of buyer Seller shall take out insurance against the usual transport risks.
(2) If delivery is delayed at buyer‘s instigation or if, in an individual case, the parties have agreed that shipment should be made on call and if buyer does not call for delivery within two months after being notified that the goods are ready for shipment, the goods will be kept in custody at Seller‘s premises or put in store, in each case at the risk and cost of buyer. Goods are regarded as delivered according to „EXW Herzberg“ (Incoterms 2010).
(3) Seller is not obliged to take back any kind of packaging. This shall not apply to pallets (Paletten) which can be sent back to Seller on buyer‘s expenses. Buyer shall be responsible for the disposal at its own expenses.
§ 6 Deliveries / Delivery Time
(1) The dates of deliveries shall be agreed by the parties. If the parties have agreed to a delivery deadline, this shall commence on the date of the order confirmation or – if there is no confirmation – at the time of placing at disposal. Delivery deadline is met if until its expiry goods are placed at disposal or delivery availability is notified to buyer.
(2) The observance of agreed delivery and performance dates presupposes timely receipt of all documents to be provided by buyer and necessary permits, provision of all necessary information and fulfilment by buyer of all other obligations. If these conditions are not fulfilled on time, the periods shall be extended by a reasonable amount; this shall not apply if delay is attributable to Seller.
(3) If Seller realises that an agreed date cannot be met, it shall notify buyer without undue delay.
(4) Seller is not liable for delays in delivery owing to force majeure or other occurrences which were not foreseeable at the time the contract was concluded (such as strike, disruptions to operations, failure to receive supplies in good time, delays in transport, unfavourable weather conditions, etc.) for which Seller is not responsible. The delivery time shall be extended by the temporary period for which Seller is unable to perform for reasons for which Seller is not responsible.
(5) Seller may make part shipments in as far as (i) buyer can use the part shipment as for the designated purpose as stated in the contract, (ii) shipment of the remaining goods is assured and (iii) buyer does not incur any additional costs here from.
(6) Claims for compensation on the grounds that it is impossible to deliver or owing to delays in delivery are limited subject to the provisions of § 8 (6) of these General Terms.
§ 7 Withdrawal from Contract
(1) In the event that buyer defaults on payment, an application for institution of insolvency proceedings on buyer‘s assets, cessation or imminent cessation of buyer’s business, transfer of vested rights in Seller’s property to third parties or transfer of buyer‘s business to third parties, Seller may withdraw from the contract subject to statutory provisions and demand repossession of the goods supplied. If buyer does not pay the purchase price due Seller may only assert these rights if it has previously set buyer a reasonable deadline for payment and such deadline has passed without success or if such a deadline is not required by statute. Seller may enter buyer‘s business premises for the purpose of repossessing the goods supplied. Seller shall be entitled to dispose freely of the reserved goods once they have been repossessed. The proceeds from realisation shall be offset against buyer‘s liabilities (less reasonable realisation costs).
(2) Seller may withdraw from contract if force majeure, strike or natural disaster or failure of Seller‘s suppliers to supply correctly or in time have a material adverse effect on Seller‘s ability to supply or prevent Seller from supplying and if this disruption, which is not attributable to Seller, is not only temporary.
(3) Seller may also withdraw from contract if the information provided by buyer on its credit-worthiness is incorrect or incomplete.
§ 8 Warranty / Compensation / Liability
(1) Warranty shall be excluded for contractually customary wear (Abnutzung), for improper or inappropriate storage, use or handling and non-compliance with the general and specific technical information available in the download section „Technical Information“ at www.homapal.de.
(2) Buyer shall inspect the goods received without undue delay on arrival for defects. It shall report any obvious defects to Seller without undue delay but no more than ten working days (Monday to Friday) after receipt of the shipment; latent defects shall be reported in writing without undue delay no more than seven working days after discovery. Otherwise the shipment shall be deemed to have been approved.
(3) Buyer shall provide Seller with an opportunity to investigate the complaint; in particular it shall make damaged goods and the packaging available for inspection by Seller. The goods in question shall be returned to Seller carriage paid at Seller‘s request within fourteen (14) days. If the complaint is justified Seller shall reimburse the costs based on the most favourable means of despatch; this shall not apply if the merchandise is at a location other than that of its designated use.
(4) If there is a defect in the merchandise Seller may choose to remedy the defect or to supply perfect goods (Nacherfüllung). The remedy does not include the removal of the defective goods or the re-installation, if the Seller was not contractually obliged to install the goods originally.
(5) The warranty does not apply if buyer alters the delivered good or has it altered by third parties and if this makes it impossible or unreasonably difficult to remedy the defect. In any event buyer shall bear the costs of any additional costs generated by remedying the defect of the altered good.
(6) If repair or supply of perfect goods is not possible, refused, does not take place or fails for other reasons within Seller‘s sphere of responsibility within reasonable deadline set by buyer, buyer may at its own discretion withdraw from contract or reduce the purchase price. A deadline is not necessary unless prescribed by statute.
(7) Seller shall not accept liability for buyer‘s claims for compensation over and above this including but not limited to compensation in lieu of performance and replacement of other direct or indirect loss including concomitant or consequential loss, irrespective of legal grounds. This shall not apply if
i. Seller fails with malicious intent to disclose a legal or quality defect or has warranted that the merchandise does not contain any such legal or quality defect or that it has specific attributes;
ii. the loss is attributable to intent or gross negligence or a negligent breach of material contractual duties on the part of Seller, one of its legal representatives or vicarious agents; material contractual duties shall be understood as obligations whose fulfilment is material to due and proper implementation of the contract and on which the contractual partner can normally rely. However, in the event of simple negligence Seller‘s liability for damages other than personal injury or damage to health is restricted to foreseeable loss typical of this type of contract.
iii. culpable breach of duty by Seller or its legal representatives or agents with vicarious liability has led to personal injury or damage to health.
iv. Seller is liable under the German Product Liability Act (Produkthaftungsgesetz).
(8) The provisions of the previous paragraph shall apply accordingly to direct claims of buyer vis-à-vis Seller‘s legal representatives or vicarious agents.
(9) If buyer faces contractual penalties (contractual penalties, liquidated damages, etc.) from a third party it may – irrespective of the other criteria – only assert claims for compensation against Seller if this has been expressly agreed upon between buyer and Seller or if Seller was informed in writing of the provision for contractual penalty agreed upon between buyer and a third party before the contract was concluded.
(10) Statutory provisions covering shipment to a final consumer who is a private individual (Supplier‘s recourse pursuant to §§ 478, 479 German Civil Code (Bürgerliches Gesetzbuch)).
§ 9 Limitation
(1) Any claims of buyer – for whatever legal reasons – shall become statute-barred 12 months after delivery of the goods. In case an acceptance (Abnahme) requirement has expressly been agreed upon, the period begins upon acceptance.
(2) The limitation period in the event of buyer‘s exercising a supplier‘s recourse pursuant to §§ 478, 479 German Civil Code shall remain unaffected.
§ 10 Place of Performance / Jurisdiction / Applicable Law / Language / Miscellaneous
(1) Unless otherwise expressly agreed, the place of performance shall be Seller‘s registered place of business.
(2) Exclusive – also international – place of jurisdiction for all disputes arising from this supply relationship shall be Herzberg/Harz. Seller may also sue buyer at the court which has jurisdiction for buyer.
(3) The laws of the Federal Republic of Germany shall apply. The application of the CISG shall be ruled out.
(4) The invalidity of any provision of these General Terms, irrespective whether partly or in full, shall not affect the validity of the other provisions. If the contract or these General Terms contain omissions such omissions shall be deemed to be filled by whatever valid provisions the contractual partners would have agreed to had they been aware of the omission, such valid provisions reflecting the commercial aims of the contract and the purpose of these General Terms.
(5) The General terms are drafted in German and in English. The English version serves only for information and is not part of the General Terms. Therefore, in the event of any inconsistency between the German and English version, only the German version shall apply.