§ 1. General, scope of application
1.1. These General Terms and Conditions shall apply to all present and future business relationships. All contracts and deliveries shall be executed subject to the following conditions. The assembly, operating and maintenance instructions (attached in Annex A) for the equipment supplied by us form an integral part of these General Terms and Conditions.
1.2. Our business operations are geared towards conducting business with entrepreneurs. Legal transactions with private users shall be excluded. These General Terms and Conditions shall thus not apply to any business transactions with private end users.
1.3. For the purpose of these General Terms and Conditions, users are any natural persons with whom business relationships are entered into and who are not acting in a commercial or independent professional capacity.
1.4. For the purpose of these General Terms and Conditions, entrepreneurs are any natural persons, legal entities or business partnerships having legal capacity with whom business relationships are entered into and who are acting in a commercial or independent professional capacity.
1.5. For the purpose of these General Terms and Conditions, clients shall include both users and entrepreneurs.
1.6. Any differing, conflicting or supplementary General Terms and Conditions shall not be a part of this contract, even if they are known, unless the validity of such Terms is expressly approved in writing.
§ 2. Contract conclusion
2.1. Our offers shall always be subject to change.
2.2. By placing an order, the client declares with binding effect that he is willing to purchase the ordered goods. We shall be entitled to accept the contract offer contained in the order by written order confirmation within two weeks upon receipt. The delivery contract shall not come into effect until confirmed by us in writing.
2.3. If the client orders goods electronically, we will promptly confirm receipt of the purchase order. This confirmation of receipt is not yet deemed to be an order confirmation. The confirmation of receipt may be linked to the order confirmation.
2.4. The contract shall be concluded subject to our suppliers' correct and timely delivery of the relevant goods to us. However, the aforesaid shall only apply in the case that any non-delivery is not attributable to us.
2.5. The client shall be informed promptly about the non-availability of performance/service. Any counter-performance shall be reimbursed without delay.
2.6. If the client orders the goods electronically, we will save the contract contents and send it to the client electronically upon request with these General Terms and Conditions.
§ 3. Delivery and services
3.1. The specified delivery period shall only be indicative and is non-binding, unless a specific binding delivery date has been guaranteed expressly and in writing. If the guaranteed binding delivery period cannot not be adhered to for reasons attributable to the client, such as incomplete fulfilment of his contractual obligations or failure to fulfil said obligations on time, in particular any failure to submit all required permits, documents, samples and drawings in their complete form and on time, any assertion of damages against us shall be excluded.
3.2. Such period is deemed adhered to:
a) if delivery does not include installation and assembly, when the consignment has been dispatched or collected within the agreed period. If the delivery is delayed for reasons attributable to the client, the period is deemed adhered to if readiness for dispatch was advised within the period. If the contract is changed subsequently upon the client’s request, and such changes affect the delivery period, the delivery period may be extended accordingly. The period is deemed adhered to:
b) if delivery includes installation or assembly, when the installation or assembly has been completed within the agreed period.
3.3. If non-adherence to the period is due to unforeseeable events not attributable to us, such as strike, lock-out, war, energy or raw material shortages or force majeure, we shall be exempt from adherence to any delivery periods and prices.
3.4. If our services are delayed for reasons attributable to us, the client cannot demand payment of damages instead of performance/services until he has granted us an appropriate period of grace, in which we may perform the relevant services, and such period has lapsed without result.
3.5. If the delivery or service is delayed or cancelled upon the client’s request or for reasons attributable to him, we shall be entitled to assert any expenses incurred by us as a result, as damages vis-à -vis the client and to charge an appropriate sum for any costs incurred such as warehousing charges.
3.6. The scope of delivery shall be based on our written order confirmation.
3.7. We also reserve the right to implement reasonable technical changes, in particular changes to design and form, which are due to an improvement in technology or a change in legislative requirements, after the contract has been concluded. The aforesaid shall also apply to changes to the scope of delivery.
§ 4. Cancellation costs
4.1. In the event of the client's unjustified rescission from the contract, we shall be entitled to demand 10% of the sales prices as compensation for expenses arising from the processing of the order. Our entitlement to demand any higher compensation for proven damages shall not be affected by this. The client is entitled to furnish proof that in individual cases the processing expenses amounted to less than the flat rate of 10%.
§ 5. Packaging and shipment
5.1. The packaging material shall become the client’s property. Postage and packaging expenses which also include the value of the packaging material, will be billed separately. We will select a mode of shipment at our discretion unless the client has expressly specified a specific mode of shipment in writing.
§ 6. Costs of delivery and services, passing of risk
6.1. Our written order confirmation shall be authoritative for executing the order. We reserve the right to implement reasonable divergences from the dimensions, weight and performance details specified therein, in particular if this concerns technical changes within the context of improvements.
6.2. The risk of accidental loss or accidental deterioration of the goods shall transfer to the client once the products have been handed over at our company’s place of business or – in case of a mail order purchase – upon delivery of the matter to the forwarding agent, the carrier, or another person or institution determined to execute the shipment, irrespective of the location from which the goods are dispatched.
6.3. Handover is deemed to have been made even if the buyer is in delay with acceptance.
6.4. If delivery includes installation and assembly, risk shall pass to the client at the time of acceptance.
6.5. We will perform our deliveries and services with the customary required care unless the client has issued specific instructions when placing or confirming his order. We do not accept any liability for damages arising from the client's instructions.
§ 7. Property rights and tools
7.1. We shall reserve title and copyright to any cost estimates, drafts, drawings and other documents. Such documents shall only be made available to third parties subject to our consent in writing.
7.2. If the client provides us with drawings, models, samples or other documents based on which we shall manufacture the products, the client shall warrant that third party property rights are not infringed.
7.3. Tools manufactured by us for the purpose of producing the goods shall remain our property unless the client assumes the costs for the manufacture of the tool either in whole or in part. In this case, the client shall become the part owner or owner of the tool. As a part owner, he shall pay any tool maintenance costs on a pro rata basis whereas as the owner he shall assume all of the maintenance costs. The length of time, during which the tools are to be retained, shall be determined in consultation with the owner. We will ourselves determine the length of time during which our own tools will be retained.
§ 8. Prices and payment terms
8.1. The proposed purchasing price shall be binding and applies to delivery ex works, not including packaging, freight and insurance costs. The prices are exclusive of statutory value-added tax.
8.2. If delivery periods exceed four months, we are entitled to implement a reasonable adaptation of the agreed fixed prices to reflect any increases in wages, freight tariffs, energy costs, value-added tax, customs duties, etc.
8.3. Our prices are principally calculated in EURO, where the price in EURO shall also be binding if payment of the purchase price in a currency other than the EURO is agreed. Changes in the EURO exchange rate, which occur after the contract has been concluded in relation to the exchange rate as at the date of contract conclusion, shall be borne by the buyer.
8.4. The purchase price shall be payable immediately upon the invoice being issued within 10 days less 2% discount and net thereafter.
8.5. Upon the expiry of 30 days after the invoice has been issued, the client is deemed to be in default. For the period of delay, the client shall pay interest on the amount owed corresponding to 8% above the base lending rate. We reserve the right to prove and assert any higher damages caused by delay in individual cases.
8.6. Bills of exchange, cheques and other means of payment shall be accepted only subject to prior agreement and as conditional payment only, without assuming any liability for protest and subject to their discountability. Discount charges will be levied as from the date the invoice amount becomes due. The principal shall bear any costs in connection with collection as well as bank interest and charges.
8.7. The client shall only be entitled to offset amounts if his counterclaims have been legally established or recognized by us.
8.8. If we become aware of circumstances following the conclusion of the contract that indicate the client’s lack of adequate financial capacity, we shall be entitled to refuse delivery of the goods and to stipulate a reasonable period to the client within which he shall pay the purchase price or provide sufficient securities. In this case, the delivery of the purchased goods shall be effected gradually against payment of the purchase price or provision of the security.
8.9. If payment of the purchase price by instalments has been agreed, we shall be entitled to declare immediately the entire outstanding purchase price payable if the client defaults on any instalment.
8.10. Payments effected shall be offset against the older claims against the principal even if the payment was made with respect to specifically designated goods.
§ 9. Reservation of title
9.1. We shall reserve title to the purchased goods until all claims of a current business relationship have been paid in full. Securities shall be released at our discretion if their value exceeds the amount of our outstanding claims by more than 20%.
9.2. The client shall treat the goods with the due care and insure them sufficiently on a replacement value basis against fire, water and theft. If maintenance and inspection works are necessary, the client shall regularly perform such works at his own expense and in accordance with our maintenance and inspection instructions.
9.3. The client shall inform us without delay of any third party access to the goods, i.e. in cases of seizure or if the goods are damaged or destroyed. The client shall notify us immediately of any change in ownership of the goods or any change of his address. The client shall be liable for any costs arising from third-party access to the goods.
9.4. If the client acts in breach of contract, in particular in the case of delayed payment or of an infringement of one of the aforesaid duties, we shall be entitled to rescind the contract and to demand that the goods be returned.
9.5. The client shall be entitled to resell the goods in the ordinary course of business. He shall already assign all claims to us now corresponding to the amount of the invoice, which he is entitled to from resale to a third party. We hereby accept the assignment. The client shall be authorised, with respect to the third party, to collect the claim assigned to us. We shall reserve the right to collect the claim ourselves as soon as the client does not duly fulfil his payment obligations and falls into arrears.
9.6. The handling and processing of the goods by the client shall always be carried out in our name and on our behalf. If processing is undertaken with articles which do not belong to us, then we will acquire co-ownership of the new article in proportion to the value of the goods supplied by us to the other processed articles.
§ 10. Warranty
10.1. If the goods delivered by us are defective, we will at first perform warranty by repair or replacement delivery at our discretion.
10.2. Failing such subsequent performance, the client may demand on principle that the remuneration be reduced (reduction) or that the contract be cancelled (rescission) at his discretion. However, in the case of minor infringements of contractual duties on our part, especially in the case of defects which only reduce the value of the item to an insignificant extent, the client shall not be entitled to rescind the contract.
10.3. Obvious defects shall be reported to us within two weeks as of receipt of the goods; otherwise, any assertion of a warranty claim shall be excluded. Punctual dispatch suffices for observance of the deadline. The client shall bear the full burden of proof that all the conditions for a claim are met, especially for the defect itself, for the point in time when the defect is established and that the defect is reported in time.
10.4. Should the client opt to exercise his right of cancellation due to failure to remedy a defect, he shall not be entitled to make any further claim to compensation for damages.
10.5. If the client opts to demand damages due to failure to remedy a defect, the goods shall be retained by the client if he can be reasonably expected to retain them. Damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if the infringement of the agreement was caused by our fraudulent behaviour.
10.6. The warranty period shall be one year from the time of delivery of the goods. This shall not apply if the client did not report the defect to us in a timely fashion (Clause 3 of this provision).
10.7. With respect to the condition of the goods, only the product description is generally deemed to be agreed upon unless a specific condition of the goods has been expressly agreed between us and the client in writing, as binding. Public statements, praise or advertising, even if made by third parties, do not represent any contractual quality description of the goods.
10.8. If delivery did not include installation and assembly and the assembly instructions supplied by us are faulty, we shall only be obliged to deliver fault-free assembly instructions and only if the fault in the assembly instructions conflicts with proper assembly.
10.9. Our liability shall be limited to statutory warranty to the extent described above. We do not provide clients with guarantees in the legal sense. Manufacturer guarantees concerning the wearing parts used in our products shall remain unaffected by this.
10.10. We do not assume any warranty for any deterioration of the wearing parts, which is caused by the ordinary and proper use of our equipment.
10.11. We do not assume any liability whatsoever for damages arising from the non-compliance with the relevant attached assembly, operating, maintenance and inspection instructions. The aforesaid shall also apply if the client implements repairs, installations or other technical changes on the equipment supplied by us without our consent.
10.12. We do not grant any warranty for the sale of used equipment or spare parts.
10.13. The client shall not be permitted to assign any damage and warranty claims to third parties.
§ 11. Assembly and repairs
11.1. The purchasing price does not include assembly. If the supplied goods are installed and assembled by us, assembly costs (working time and additional material if applicable) and costs for our employees’ travel to and from the site and for the transport of the required equipment and tools will be added to the purchasing price. Such costs shall be borne by the client.
11.2. If technical or other issues with respect to the installation of the equipment at the client’s premises are to be clarified, the client shall name a qualified person who shall be available as a contact during assembly. Likewise, the client shall provide any equipment required on site for assembly and supporting staff where required. Any preliminary work required for proper assembly (e.g. brickwork, laying of supply lines, checking the load bearing capacity of the place of installation, etc.) shall be carried out by the client. We will not accept any liability from damages arising from the non-fulfilment of this obligation. Any additional costs and expenses arising from the non-fulfilment of these obligations shall be borne by the client.
§ 12. Information, consultation, safety regulations
12.1. The designated use and handling of our equipment shall be governed by the product descriptions and operating, maintenance and inspection instructions supplied by us. We will not accept any liability whatsoever for damages arising from the client using our equipment in any way other than described by us or for any other purpose.
12.2. The client shall ensure that our own prescribed as well as the generally applicable and known safety regulations and measures are adhered to, irrespective of whether he uses the products, which we supplied, himself or resells them. In the case of matters that are not clear (for example if the client is not sure whether our prescribed safety measures are correct and complete), the client shall inform us accordingly in writing and consult with us about the further procedure.
§ 13. Miscellaneous, final provisions
13.1. These General Terms and Conditions shall be governed by the Federal Republic of Germany. The provisions of the United Nations Conventions on Contracts for the International Sale of Goods shall not apply.
13.2. With respect to the client's payment obligations and other duties, our company's registered place of business shall be the place of performance.
13.3. The exclusive place of jurisdiction for all disputes arising from this contract shall be our place of business. The aforesaid shall also apply if the client does not have any general place of jurisdiction in Germany or if his place of residence or habitual abode is not known at the time the action is brought. Notwithstanding the above, we shall be entitled at our discretion to submit all disputes arising from this contract to the International Chamber of Commerce, Paris for arbitration. The place of arbitration shall be our company’s place of business. Supplementary to the rules of procedure of the International Chamber of Commerce, the provisions of the German arbitration law shall apply.
13.4. If individual provisions of the contract with the client, including these General Terms and Conditions, are or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected by this. The regulation, which is invalid in whole or in part, shall be replaced by a regulation the economic intent of which corresponds to that of the invalid regulation to the greatest extent possible.
Theodor Henrichs GmbH
Am Hellerberg 16