Delivery and sales conditions

Preamble

Our deliveries (services, cost estimates/consultations and ancillary services, etc.) shall be made only on the basis of the following Terms and Conditions of Sale. Any other general terms and conditions of the customer are hereby expressly rejected.

These shall not be valid even if we do not expressly object to them again after receipt by us.

1. Offers

1.1 Our offer contains a description of the scope of delivery (if applicable the projected plant), including the most important performance data, the associated prices and the current boundary conditions. Documents belonging to the offer - drawings and brochures - as well as weight and dimension specifications are non-binding unless they are designated by us as binding. A reference to corresponding DIN regulations is to be regarded as a performance description and not as an assurance of properties.

1.2 As a rule, quotations are free of charge and non-binding for the purchaser. In the case of planning work and the preparation of tenders which go beyond the usual processing of offers, special agreements must be made with regard to the assumption of costs before the offer is submitted.

1.3 Unless otherwise agreed upon submission of the offer, we shall be bound to our offer for a period of 3 months.

1.4 Offers and cost estimates, drafts, drawings and calculations shall remain our property; they may not be reproduced or made accessible to third parties without our consent. If the order is not placed with us, all documents provided must be returned to us immediately.

If the customer violates the obligation to maintain secrecy, a contractual penalty in the amount of €5,000.00 shall be deemed to have been obtained, whereby a continuation of the contract is excluded. This shall not affect our right to assert further claims, in particular claims for damages.

1.5 Subsidiary agreements are only effective if they have been confirmed by us in writing.

2 Conclusion of contract / Scope of delivery and services

2.1 The scope of delivery and/or services including the most important performance data of the projected plant as well as the total price require express written confirmation.

2.2 Additional deliveries and services requested by the customer or required for other reasons for which we are not responsible, which go beyond the agreed scope of deliveries and services, shall be remunerated separately by the customer in the amount of the costs incurred.

Such additional deliveries and services shall only be carried out by us if we have received a binding order for them from the customer, for which the delivery conditions of the main contract shall then apply.

2.3 If the agreed deliveries and services have to be carried out under conditions which, with regard to the time schedule or the working conditions, do not correspond to the conditions which were taken as a basis when the offer was made and the contract was concluded, the Purchaser shall reimburse the additional costs incurred as a result on the basis of the actual expenditure. However, the Purchaser shall be informed immediately of the changed conditions upon becoming aware of the deviating working conditions.

3. Pricing

3.1 Unless otherwise agreed, the prices quoted shall apply ex works. If delivery free receiving station has been agreed, the standard gauge railroad station nearest to the place of destination shall apply. If delivery by truck has been agreed, delivery may only be requested to an unloading point accessible by vehicle on or in the vicinity of the Purchaser's works premises.

The prices do not include insurance, packaging, delivery to the installation site, unloading, possible reloading and installation. We are not obliged to present the freight costs.

The prices of our offer or the order confirmation are based on the manufacturing costs valid on the day of acceptance. We reserve the right to charge those prices at the time of delivery which prove to be necessary for calculation purposes as a result of cost increases due to price increases for basic and auxiliary materials, wage and freight increases as well as new introduction or increase of taxes, customs duties or other levies.

4. Terms of payment

4.1 If no special agreements are made for this purpose, the purchase price shall be paid as follows: 1/3 upon order, 1/3 upon delivery or, in the case of delayed acceptance, upon notification of readiness for shipment and 1/3 four weeks later. The installments are each due in cash without deduction. The statutory value added tax shall be calculated in accordance with the valid provisions and shall be payable immediately.

4.2 The agreed payment installments will be requested by us when due. The customer shall be entitled to inspect the status of the work in our production halls.

4.3 In the event of delays in the production and assembly process for which we are not responsible, the payment due dates shall apply as if the work had been started or carried out on schedule. If the customer is in default with his payment obligations, our obligation to deliver and perform shall be suspended.

4.4 The payment obligation is fulfilled on the day on which we can dispose of the amount. In the case of bank transfers, this is the day on which the amount is credited to one of our accounts.

4.5 Withholding of payments or offsetting due to counterclaims or warranty claims not recognized by us is not permitted.

4.6 In the event that the payment deadline is exceeded, interest shall be charged in the amount of the credit costs charged by the banks, but at least interest in the amount of 4% above the respective discount rate of the Deutsche Bundesbank.

4.7 If the terms of payment are not complied with or if facts become known which give rise to justified doubts about the creditworthiness of the customer, all our claims, including those for which we have accepted bills of exchange, shall become due immediately. Das gleiche gilt für angefallene Kosten, für Leistungen und für in Arbeit befindliche sowie fertiggestellte, aber noch nicht gelieferte Ware. In  diesen Fällen brauchen wir ausstehende Lieferungen und Leistungen nur gegen Vorauszahlung oder Sicherheitsleistung ausführen und können nach angemessener Nachfrist vom Vertrag zurücktreten oder Schadensersatz wegen Nichterfüllung verlangen.

5. Retention of title

5.1 The delivery item shall remain our property until all claims have been satisfied, irrespective of the legal grounds, in particular also balance claims, even if payments are made on specifically designated claims.

5.2 The processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 95O BGB (German Civil Code) without any obligation on our part. In the event of processing with other goods not belonging to the customer, we shall be entitled to co-ownership of the manufactured item in the ratio of the invoice value of our reserved goods used for the manufactured item to the sum of all invoice values of all goods used in the manufacture. If our delivery item is mixed or combined with other items and our ownership of the goods subject to retention of title thereby expires (§§ 947, 948 BGB), it is hereby agreed that the rights of ownership or co-ownership shall pass to us and that the customer shall hold them in custody for us free of charge. Otherwise, the same shall apply to items/stocks resulting from the processing etc. or from the combination or mixing as to the goods subject to retention of title. Items/inventories shall be deemed to be goods subject to retention of title within the meaning of the Terms and Conditions of Sale.

The customer may only sell the reserved goods in the ordinary course of business under his normal terms and conditions and as long as he is not in default. He shall only be entitled and authorized to resell the reserved goods subject to the proviso that the claim from the resale shall pass to us in accordance with the following paragraphs. He shall not be entitled to dispose of the reserved goods in any other way. The purchaser's claims arising from the resale of the reserved goods are hereby assigned to us, irrespective of whether the reserved goods are sold without or after processing, mixing or combining and whether they are sold to one or more purchasers.

In the event that the reserved goods are sold by the customer together with other items not supplied by us, the assignment of the claim from the resale shall only apply to the amount of the invoice value of the reserved goods sold in each case.

If the goods subject to retention of title are resold after processing, in particular after processing with other items not supplied by us or after combination, mixing, the assignment shall only apply to the amount of the co-ownership share to which we are entitled in the item or stock sold. If the goods subject to retention of title are used by the customer for the performance of a contract for work and services or a contract for work and materials, the claim arising from the contract for work and services or the contract for work and materials shall be assigned to us in advance to the same extent as stipulated in the aforementioned paragraphs.

5.3 The customer shall be entitled to collect claims from the resale until our revocation, which shall be admissible at any time; we shall only make use of the right of revocation in the event of default in payment. The purchaser shall not be authorized to assign the claim under any circumstances. At our request, the customer shall be obliged to inform his customers of the assignment to us and to provide us with the information and documents required for collection. The purchaser must inform us immediately of any seizure or other impairment by third parties.

5.4 If we make use of our right of withdrawal pursuant to § 455 BGB, the place of performance for the mutual obligations resulting from the withdrawal shall be Recklinghausen. We shall be entitled to have the delivery item dismantled by our fitters and to have it removed at the Purchaser's expense. The taking back of the goods shall only constitute a withdrawal from the contract if we expressly declare this.

5.5 In any case, we or our agents are entitled to take possession of the delivery item for the duration of the retention of title in the event of default by the customer at any time and against anyone without official assistance. In the event of utilization of the reserved title to the delivery item, we shall be entitled to the best possible sale on the open market.

6. Delivery time

We shall comply with the promised delivery period as far as possible, but shall not assume any liability for it without any special agreement. Claims for damages of any kind due to delayed delivery are excluded.

6.2 The delivery period shall run from the time when agreement has been reached between the Purchaser and us on all details of the order, both with regard to the conditions and the necessary authorization for the procurement of materials, as well as with regard to the technical execution, but at the earliest from the dispatch of the written order confirmation. Subsequent changes requested by the customer or substantial changes deemed expedient or necessary by us during the design phase shall result in a corresponding extension of the delivery period. Compliance with the delivery period shall be subject to the timely receipt of all documents to be provided by the Purchaser, necessary approvals, releases, timely clarification and approval of plans, compliance with the agreed terms of payment and other obligations. If these obligations are not fulfilled in time, the delivery period shall be automatically extended by a reasonable period of time.

6.3 The delivery period shall apply subject to unforeseen hindrances, irrespective of whether they occur at our own works, at our subcontractors' works or at the construction site, such as cases of force majeure, mobilization, war, riot, official orders or requirements, shortage of labor, rejection of an important work item or other delays in transport through no fault of our own, interruption of operations, strikes and lockouts, as well as subject to delayed delivery of essential raw and construction materials for which we are not responsible. insofar as these obstacles demonstrably affect the completion or delivery of the item. The delivery period shall be reasonably extended in the event of such hindrances. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. In the event of the occurrence of such events, the purchaser shall be notified as soon as possible. The delivery periods shall be deemed to have been met if the deliveries have left the factory within the agreed time or, if dispatch has been delayed at the request of or through the fault of the purchaser, were ready for dispatch.

In the event of war, we are entitled to withdraw from the contract in whole or in part without any obligation.

6.4 We shall not be liable for delays caused solely by the fact that our sub-suppliers have not delivered to us in due time despite having placed an order in due time, provided that we have taken all appropriate and possible steps to determine the sub-supplier to deliver in due time. We must provide evidence of the latter.

6.5 If timely delivery is prevented for one of the reasons stated in Clauses 6 3 and 6 4, the purchaser shall have no claim to compensation. In such cases, any agreed contractual penalties shall also cease to apply for the duration of the delays in delivery for which we are not responsible. 

If delivery or assembly is delayed due to circumstances for which the customer is responsible, the costs incurred by us as a result shall be reimbursed separately.

6.6 If the customer is in arrears with the acceptance of the goods for more than 14 days from receipt of the notification of readiness for delivery, either intentionally or due to gross negligence, we may set the customer a grace period of 14 days in writing with the declaration that acceptance will be refused after expiry of the grace period. After unsuccessful expiry of the grace period, we shall be entitled to withdraw from the contract by written declaration or to claim damages for non-performance.

The setting of a grace period shall not be required if the Purchaser seriously and finally refuses acceptance or is obviously not in a position to pay the agreed total purchase price confirmed in writing even within this period.

If we claim damages, these shall amount to 15% of the total purchase price agreed and confirmed in writing. The amount of damages shall be set higher or lower if we prove a higher damage or the Buyer proves a lower damage.

In addition, if acceptance of the ordered goods does not take place within the set period and after setting a grace period, we may charge storage fees for the goods not called off in the amount of ½ % of the invoice amount for each month or part thereof.

6.7 If we are unable to store the delivery ourselves, we shall be entitled to store the delivery elsewhere after expiry of two weeks from the agreed delivery date, whereby the costs for storage, transport, loading and unloading and insurance must be borne by the customer. Any liability on our part beyond the insurance coverage is excluded.

7. Shipment, delivery, liability

7.1 Shipment and packaging are carried out at our discretion, but always for the account and at the risk of the purchaser.

Should it not be possible to deliver the goods despite the agreed delivery date, the customer must bear the costs incurred for any necessary return transport or for any waiting times. 

If the Purchaser is unable to accept the delivery item on the agreed delivery date, an agreement shall be made regarding interim storage and interim transport. If such an agreement is not reached, we shall be entitled to proceed in accordance with Clause 6.7 of the Conditions of Sale.

7.2 We shall be liable within the scope and extent of the liability insurance for all personal injury and property damage culpably caused to the customer by our employees and workers during the execution of the assembly commissioning or trial operation The amount of liability shall be limited to the liability sum.

We shall not be liable for any damage culpably caused by the assembly or operating personnel provided by us (e.g. due to non-compliance with the instructions of the responsible assembly manager). In this context, the personnel provided by us shall not be deemed to be vicarious agents of the customer.

In the event of damage to third parties culpably caused by the assembly personnel or operating personnel provided by us, we shall be exempted from liability towards third parties by the customer.

7.3 With the handover of the delivery item to the carrier, but at the latest when the delivery item leaves the distribution warehouse or supplying plant, the risk shall pass to the Purchaser, even in the case of deliveries free destination. This shall apply to all deliveries, including partial deliveries. At the request of the purchaser, we shall take out transport insurance at the purchaser's expense.

Damage occurring during transport must be reported immediately to the carrier and notified to us in writing within 5 days. We shall only be liable to the extent that we are liable to the carrier. 

If the shipment is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer from the day of readiness for shipment. The foregoing shall also apply if the Purchaser is in default with the acceptance of the delivery notified as ready for dispatch [Clause 6.6].

8. Assembly

8.1 For the assembly, our special assembly conditions apply in the currently valid version.

9. Receipt and fulfillment

9.1 Delivered items are to be accepted by the customer, even if they have insignificant defects. Partial deliveries are permissible.

9.2 Delivery shall be deemed to have been fulfilled when the item has been delivered in accordance with the terms of the contract or, if delivery has been delayed through the fault of the Purchaser, when it is ready for dispatch and the Purchaser has been notified that it is ready for dispatch.

9.3 Only those properties which are expressly stated by us as warranted shall be deemed warranted.

9.4 All inspections required by authorities or by the Purchaser itself shall be carried out at the Purchaser's risk with regard to statutory liability and insurance as well as any damage occurring.

9.5 Any acceptance tests shall take place within 2 months after commissioning, but in any case during the warranty period.

9.6 We must be notified of any test to be carried out in good time so that we can send a representative. We must be permitted by the purchaser to inspect the plant to be tested to ensure that it is in proper condition. Defects discovered in the course of such inspection shall be remedied by us if we are responsible for them in accordance with the terms and conditions of sale, otherwise by the Purchaser at the latter's expense.

Acceptance tests whose program has not been previously acknowledged by us in writing and at which a representative sent by us is not present shall be deemed ineffective against us. The costs for the preparation and execution of the tests required by the authorities or the purchaser as well as acceptance tests shall be borne by the purchaser. The costs for tests to prove the performance guarantees given shall also be borne by the purchaser in the same way.

10. Rights of the customer in case of defects of the delivery

10.1 Our warranty is limited in principle to the scope of delivery, except in cases where rectification of the defect by us would require a disproportionate effort and the customer can be reasonably expected to rectify the defect or replace the spare parts to be provided by us.

10.2 The warranty and limitation period shall be calculated from the day of dispatch for deliveries without installation and from the day of trial commissioning for deliveries with installation and shall last 6 months for single-shift operation and 3 months for multi-shift operation after installation, but no longer than 3 or 6 months after the date of invoice.

10.3 The material warranty shall extend, at our option, to the replacement or repair of parts which become unusable in particular due to faulty design, poor material or defective workmanship. Parts to be replaced shall be sent freight prepaid. In principle, we are then also entitled to deliver the spare parts against cash on delivery. In principle, we are then also entitled to deliver the spare parts against cash on delivery.

For third-party products, our liability shall be limited only to the assignment of the warranty claims to which we are entitled against the supplier of the third-party product.

In all cases, only those parts shall be replaced which show the defect in the material or in the workability, and the parts inevitably damaged by this defect despite proper handling of the object of purchase. Replaced parts shall become our property.

10.4 In view of the fact that it is often not possible to immediately inspect the goods for defects and usability due to their special nature, the period for the customer to give notice of defects shall not apply if the defect is a so-called hidden defect.

Insofar as an open defect is concerned, the timeliness of the notice of defect shall be based on its receipt by us. Open defects shall also include defects which could have been detected by the customer during the joint acceptance of the delivery. If we fail to give notice of obvious or hidden defects without delay, we shall be released from our warranty obligations.

10.5 Our guarantee for good function and full performance of the equipment is subject to the condition that an inspection by a special fitter appointed by us can be carried out at the expense of the purchaser prior to commissioning during trial operation.

10.6 Immediately after the trial run, a takeover certificate to be signed by both contracting parties shall be issued. From then on, at the latest, the purchaser shall assume sole responsibility for the operation of the plant. The takeover of operation cannot be rejected by the purchaser at this point due to insignificant rework.

10.7 The day of commissioning shall be the day on which the delivery item is put into operation or use, apart from minor interruptions. If, through no fault of our own, this does not occur within 6 weeks of completion of installation, commissioning shall be deemed to have taken place upon expiry of this period. If shipment or installation is delayed through no fault of our own, any liability shall expire no later than 12 months after the delivery is ready for shipment.

10.8 The customer shall grant us the necessary time and opportunity to carry out all modifications or supply spare parts that we deem necessary.

If he refuses to do so, we shall be released from liability for defects. If the customer does not provide the delivered items in time, we shall only be liable for the damage originally to be repaired, but not for damage caused by the defective part during further operation. The customer shall also provide the necessary auxiliary personnel etc. free of charge for such repair work. If notices of defect given in due time are not acknowledged, the right of the Purchaser to assert claims based on defects shall expire in all cases six months from the date of the timely notice of defect, but no earlier than the expiry of the liability.

10.9 The liability for defects does not apply to natural wear and tear, nor to damage resulting from incorrect or negligent handling, excessive stress, violent destruction, the use of unsuitable operating materials, chemical, electrochemical or electrical influences that occur through no fault of our own, or transport damage. No liability shall be assumed for delivery parts which are subject to premature consumption due to their material properties or their type of use. Also excluded from the warranty are all damages that may result from improper maintenance, such as non-observance of the existing legal and official regulations for the operation and treatment of the delivered items as well as regulations made by us.

10.10 The warranty expires:
- in case of delivery without assembly, if interventions have been made on parts subject to warranty
- in the case of delivery with assembly, if changes are made to the equipment without our consent
- for all deliveries, if the equipment is damaged by structural obstacles fire, explosion, theft, water, frost or similar circumstances for which the Purchaser is solely responsible,

- if defective and objected parts of the delivery item are not returned within 3 weeks
- if the delivery item is modified by parts of foreign origin,

- if the acquisition of the delivery item cannot be proven by presenting the invoice
If the assembly is carried out by us, fire guards must be set up by the customer to prevent fire hazards when carrying out welding, thawing or soldering work in particularly hazardous areas, e.g. wooden walls, roof walls, above combustible materials, etc. The customer shall be responsible for ensuring that the fire guards are in place.

10.11 The provisions on delivery time and liability shall apply accordingly if rectification work or replacement parts are defective.

10.12 Our liability exists only until the end of the warranty for the original delivery item. The period of liability for defects shall only be extended by the duration of the interruption of operation caused by the rectification work only for those parts of the plant which could not be put into useful operation due to the interruption, if the interruption of operation in total exceeds the fourth part of the agreed warranty period.

10.13 No warranty is given for the acceptance of repair work, after the warranty period has expired, or for modifications and conversions of old equipment. For reconditioning and repair work after the expiry of the warranty, a further warranty will only be given if this has been expressly agreed in advance.

11. Rights of the customer to withdraw from the contract or to reduce the purchase price or to claim damages Delivery and Sales Conditions of Hetra-GSS GmbH, Recklinghausen

11.1 If performance becomes definitively impossible for us before the transfer of risk, the purchaser may withdraw from the contract in the event of definitive impossibility without claiming damages. If, in the case of an order for similar items, part of the delivery becomes impossible, the customer may reduce the consideration accordingly.

11.2 If the impossibility occurs during the delay in acceptance or through the fault of the Purchaser, the Purchaser shall remain obligated to counter-performance.

11.3 Furthermore, the customer shall have the right to withdraw from the contract if we allow a reasonable period of grace granted to us for the rectification of a defect for which we are responsible within the meaning of the terms and conditions of sale to expire fruitlessly. The reasonable grace period shall not commence until the defect and our obligation to represent have been acknowledged by us or have been proven beyond doubt.

11.4 All further claims for redhibitory action or reduction are excluded.

11.5 Claims for damages by the purchaser arising from impossibility of performance, default arising from positive breach of contract, from culpa in contrahendo or subsequent to the conclusion of the contract and from tort are excluded both against us, our legal representatives, our management, executive employees and against our vicarious agents and persons employed in the performance of our obligations, insofar as no intentional or grossly negligent action is involved.

11.6 The place of performance for the mutual obligations resulting from the withdrawal is Recklinghausen.

12. Right of the supplier to withdraw

12.1 In the event of unforeseen events within the meaning of Sections 6.3 and 6.4 of the Terms and Conditions of Sale, insofar as they significantly change the economic significance or the content of the performance or have a significant effect on our operations, and in the event that it subsequently becomes apparent that performance is actually impossible, we shall be entitled to withdraw from the contract insofar as we are unable to perform in accordance with Section 9. Furthermore, we shall be entitled to withdraw from the contract if, after commissioning of the delivered equipment and performance of an acceptance and performance test, it becomes apparent that the performance and functional guarantees given cannot be fulfilled and the delivered item must be regarded as a faulty
design.

The services received by both parties must then be returned in accordance with § 346 BGB.

12.2 If we wish to make use of the right of withdrawal, this shall be communicated to the Purchaser without delay after realization of the significance of the event, even if an extension of the delivery period had been agreed with the Purchaser. In the event of withdrawal, the place of performance for the mutual obligations resulting from the withdrawal shall be Recklinghausen.

13 Place of performance and jurisdiction

13.1 Place of performance for delivery and payment is Recklinghausen.

13.2 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions in proceedings relating to bills of exchange and checks, shall be the Local Court of Recklinghausen or the Regional Court of Bochum, at our discretion. We shall be entitled to sue the customer at his general place of jurisdiction This shall also apply to deliveries abroad The law of the Federal Republic of Germany shall apply exclusively to all contractual and legal relations between us and the customer.

14. Transferability of the contract

14.1 The rights of the purchaser under the contract are not transferable.

15. Severability clause

15.1 Should any provision of the Terms and Conditions of Sale be or become invalid or unenforceable, the legal validity of the remaining provisions of the Terms and Conditions of Sale shall not be affected thereby.

15.2 Any misprints in the printed matter, obvious errors, typographical errors and miscalculations do not obligate us.

16 Validity of the Terms and Conditions of Sale

The above conditions shall also apply to such rectification work which is not carried out within the scope of a liability for defects but against remuneration, as well as to repeat orders which relate to the delivered plant.

Only our German terms of delivery and sale are legally binding.