Henninger GmbH u. Co. KG
Phone: +49 (0) 70 82 - 92 41 - 0
Fax: +49 (0) 70 82 - 92 41 - 41
General Terms of Business of Henninger GmbH & Co. KG (AGB)
- The following terms of sale and delivery shall apply to deliveries to business enterprises, legal persons under public law and special funds under public law.
- Our general terms of business shall be exclusively applicable. General terms of business of the purchaser to the contrary shall not be applicable.
- Our offers are made without obligation. Alterations due to technical advances or legislative demands as well as alterations with regard to form, colour and/or weight remain reserved in so far as is reasonable.
- We reserve our ownership and copyright exploitation rights without restriction to estimates, drawings and other documents. Such documents may only be made accessible to third parties after our prior agreement and must be returned to us without delay on request.
- Correct delivery in due time to ourselves remains reserved. This shall only be applicable if we are not responsible for the non-delivery, especially in the case of the conclusion of a corresponding covering transaction with our supplier. We shall inform the customer without delay of the non-availability of the subject-matter of the delivery and in the case of withdrawal from the order shall reimburse the corresponding consideration to the customer without delay.
- Part deliveries are permissible, provided they are reasonable for the customer.
- Confirmation of order, prices
- The exclusive contractual basis is the confirmation of order or – if such confirmation does not exist – the delivery note in conjunction with the invoice. Agreements to the contrary shall require our written confirmation.
- The prices for machines, for tools and for commissioned work are applicable ex works, exclusive of packing, freight, postage and insurance. The prices are expressed as net prices. The statutory rate of value added tax shall be additionally invoiced.
- Unless otherwise agreed, the remuneration shall fall due as following:
- For machines immediately net without discount free paying agent, namely 1/3 payment on account after receipt of the confirmation of order, 1/3 after notification of the readiness for shipment and the balance within one further month;
- For tools within 14 days with 2 % prompt-payment discount, within 30 days net;
- For commissioned work within 14 days net without discount.
After the due date has been reached, the customer shall be in default without further notification of the contractor if it has not yet paid.
- If defects exist, the customer shall not be entitled to a right of retention as long as and in so far as this is not in a reasonable proportion to the defects and the expected costs of the subsequent performance (especially remedying of the defects).
- The customer is not entitled to assert claims and rights due to defects if it has not made due payments or if the due amount (including any payments made) is not in a reasonable proportion to the value of the defective performance.
- Payments are to be made in cash or by remittance.
- In the case of default in payment, we shall be entitled to demand default interest in the amount of 9 % over the respective base interest rate. The customer is entitled to prove that the contractor has suffered a lesser loss; the contractor is entitled to prove a higher loss.
- Delivery period, default
- Delivery periods are binding if they are expressly confirmed by us in writing.
- The compliance with periods for deliveries presupposes the receipt in due time of all documents which are to be supplied by the customer, if necessary permits and releases, especially plans, as well as the compliance with the agreed terms of payment and other obligations by the customer. If these prerequisites are not met in due time, then the deadlines shall be extended by a reasonable period; this shall not be applicable if we are responsible for the delay.
- A delivery period is met if notification of the readiness for shipment has been made or if the subject-matter of the delivery has left the works by its expiry.
- If the non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar circumstances, e.g. strikes, lock-outs, then the deadlines shall be extended by a reasonable period.
- If we are in default with the delivery, then the customer – provided it credibly proves that it has thus suffered a loss – can demand compensation for every full week of the delay of 0.5 % per week, in total, however, 5 % at the most of the price for the part of the deliveries with which we are in default.
- Both claims for damages of the customer due to the delay in delivery and claims for damages instead of performance which exceed the limits stated in Section 4.5. are excluded in all cases of delayed delivery, even after the expiry of any deadline set to us to effect delivery. This shall not be applicable in the event of compulsory liability in cases of intent, gross negligence or due to death, physical injury or damage to health. The customer may only withdraw from the contract within the scope of the statutory provisions if we are responsible for the delay in delivery. An alteration of the burden of proof to the customer’s detriment is not created by the above regulations.
- The customer is obliged at our request to state within a reasonable period whether it is withdrawing from the contract due to the delay in delivery or is insisting on delivery.
- If shipment or delivery is delayed at the customer’s request by more than one month after the notification of the readiness for shipment, then the customer can be charged for every commenced month storage fees in the amount of 0.5 % of the price of the stored goods, at the most, however, 5 % in total. The contracting parties are entitled to prove higher or lower storage costs.
- Cancellation charges
- If the customer withdraws from an awarded order without due cause or if the contract is not executed for reasons for which the customer is responsible, then we, notwithstanding the possibility of asserting a higher actual loss, can demand 10 % of the agreed remuneration as flat-rate damages.
- The customer is entitled to prove that no loss at all has been suffered or that the loss is much lower than the flat-rate sum.
- Warranty claims shall not exist in the case of only insignificant deviation from the agreed characteristics and/or in the case of only insignificant impediment to the usability.
- For defects to the supplied articles we shall firstly afford warranty at our option by subsequent rectification or substitute delivery.
- If the subsequent performance fails, then the customer may in principle at its option demand a lowering of the remuneration (price reduction) or the rescission of the contract (withdrawal). In the case of only slight breach of contract, especially in the case of only slight defects, the customer shall, however, not be entitled to a withdrawal right.
- Obvious defects must be notified in writing within a period of two weeks from the receipt of the delivered articles. Otherwise, the assertion of a warranty claim is excluded. The deadline is met by sending the notification in due time. The customer shall bear the full burden of proof for all claim prerequisites, especially for the defect itself, for the time of the ascertainment of the defect and for raising objection to the defect in due time.
- If the customer selects withdrawal from the contract after failed subsequent performance due to a title or material defect, then it shall not additionally be entitled to any claim for damages due to the defect.
- Only our product description shall in principle be regarded as agreed as the characteristics of the goods. Public statements, recommendations or advertising do not constitute a contractual indication of the characteristics of the goods. Information and data contained in data sheets, brochures and other advertising and information material only serve as guidelines and shall only become a binding component of the contract if we have expressly agreed to them in writing.
- If the customer receives faulty assembly instructions, then we are merely obliged to supply fault-free assembly instructions, and indeed are only obliged to do so if the defect to the assembly instructions hinders due and orderly assembly.
- Quality and durability indications shall only be regarded as guarantees if they are expressly denoted as such. The same applies to the assumption of a purchase risk.
- Limitations of liability
- In the case of intentional or grossly negligent breaches of duty as well as in the case of culpable death, physical injury or damage to health, we shall be liable for all thus incurred losses without limitation, unless otherwise stipulated by law.
- In the case of gross negligence by non-executive employees, our liability for material and financial losses shall be restricted to the typical contractual foreseeable loss.
- In the case of slight negligence, we shall only be liable for material and financial losses in the case of the infringement of fundamental contractual obligations. Again in this case, our liability shall be restricted to the typical contractual foreseeable loss.
- More extensive liability for damages than regulated in Subsections 1. to 3. above is – without consideration of the legal nature of the asserted claim – excluded. This especially applies to tort according to Articles 823 and 831 of the German Civil Code; any unrestricted liability according to the provisions of the German Product Liability Act remains unaffected.
- Limitation of actions
- The limitation period for claims and rights due to defects to the deliveries shall be one year from delivery. This shall not apply in the cases of Article 438, Paragraph 1, No. 1 of the German Civil Code, Article 438, Paragraph 1, No. 2 of the German Civil Code and Article 479, Paragraph 1 of the German Civil Code. The claims stated in Sentence 2 above shall be subject to a limitation period of three years.
- The limitation periods according to Paragraph 1 above shall also apply – irrespective of the legal basis of the claim – to all claims for damages against the contractor which are connected with the defect. If claims for damages against the contractor exist which are not connected with a defect, then the limitation period of Paragraph 1, Sentence 1 shall apply to them.
- The above limitation periods shall not be applicable a) in the case of intent, b) if the contractor has fraudulently concealed the defect; if the contractor has fraudulently concealed a defect, then instead of the periods stated in Paragraph 1, the statutory limitation periods shall be applicable which would apply in the absence of fraudulent intent, c) in cases of death, physical injury, damage to health, loss of freedom, in the case of claims according to the German Product Liability Act, in the case of a grossly negligent breach of duty or in the case of the infringement of fundamental contractual obligations. The statutory limitation periods shall be applicable in these cases.
- Reservation of title
- We reserve title to the goods supplied by us until settlement in full of all claims from an ongoing business relationship. If the value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 20 %, then at the customer’s request we shall release a corresponding part of the security rights.
- The customer is obliged to treat the goods with care. If maintenance and service work is necessary, then the customer must have this work carried out regularly at its own expense.
- The customer is obliged to inform us without delay of a third-party seizure of the goods, for example in the case of an attachment, and also of any damage to or destruction of the goods. A change of possession of the goods as well as a change of its own domicile or business domicile must be notified to us by the customer without delay.
- In the case of conduct contrary to the terms of the contract by the customer, especially in the case of default in payment, or in the case of the infringement of an obligation according to Subsection 2 or 3 of this Section, we are entitled to withdraw from the contract and to demand the surrender of the goods.
- The customer is entitled to resell the goods in the ordinary course of business. It already now assigns to us all claims in the amount of the invoice sum which it acquires through the resale against a third party. We accept the assignment. After the assignment, the customer is authorised to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not meet its payment obligations in a due and orderly manner and is in default in payment.
- The treatment and processing of the goods by the customer shall always be effected in our name and on our behalf. If processing is undertaken with articles which do not belong to us, then we shall acquire co-ownership of the new article in proportion to the value of the goods supplied by us to the other processed articles. The same shall apply if the goods are mixed with other articles which do not belong to us.
- Final provisions
- The authoritative law of the Federal Republic of Germany for the legal relations of domestic contracting parties shall be exclusively applicable. The application of the UN Sales Convention of 11.04.1980 is excluded.
- Exclusive place of jurisdiction for all disputes arising from this contract is our business domicile. This shall also be applicable if the customer has no general place of jurisdiction in Germany or if the customer’s domicile or customary residence is not known at the time of bringing an action. We are, however, also entitled to bring an action at the customer’s domicile.
As at: December 2010