General Terms & Conditions of Sale of Heubach DUSTMETER GmbH
1. General − scope
1. Our Terms & Conditions of Sale shall apply exclusively; we shall not recognise terms and conditions of sale issued by the Customer which are conflicting or different from ours, unless we have expressly agreed to their validity in writing. Our Terms & Conditions of Sale shall apply even if, though cognizant of conflicting or different terms and conditions issued by the Customer, we carry out delivery to the Customer without proviso.
2. All Agreements reached between ourselves and the Customer for the purpose of executing this contract are set out in this contract. Supplements or amendments to contract shall only be valid if they are in writing. Verbal assurances by our representatives or other assistants shall require written confirmation by ourselves.
3. Our Terms & Conditions of Sale shall only apply to business or commercial Customers as defined in Section 14 of the German Civil Code (BGB), to legal entities under public law, and to separate public estates.
4. Our Terms & Conditions of Sale shall apply to all present and future business relations with the Customer.
2. Conclusion of contract
1. Our offers shall be non-binding. The contract shall not be created until our written confirmation of order has been given and, should no confirmation of order have been sent, until delivery or until receipt of our invoice.
2. If the Customer’s order is to be deemed an offer under the terms of Section 145 of the German Civil Code (BGB), we may accept this within 2 weeks following delivery to ourselves.
3. Correct and timely delivery to ourselves is hereby reserved. We shall inform the Customer immediately should the delivery be unavailable and reimburse the Customer immediately for the corresponding counterperformance.
3. Prices − terms and conditions of payment
1. Insofar as the confirmation of order does not state otherwise, our prices shall be ex works or ex store. We shall be entitled to charge the Customer for any additional expenses incurred following conclusion of contract (e.g. new or higher customs dues, taxes, increase in market prices of raw materials, increases in the charges levied by Third Parties involved in the performance (particularly manufacturers and suppliers)). Should the price resulting therefrom be 20% or more above the agreed price, the Customer shall be entitled to withdraw from contract. This right must be exercised immediately following notification of the increase in price.
2. Our prices shall include the standard packaging used by ourselves. Insofar as it has not been agreed otherwise, the Customer shall pay all other ancillary costs, particularly costs of additional packaging, freight charges and transport insurance.
3. When calculating the price, our calculation of the weight at delivery shall be decisive.
4. Statutory Value Added Tax will not be included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoice issue.
5. Insofar as the confirmation of order does not state otherwise, the Customer agrees to pay the purchase price net (without deduction) within 10 days following receipt of invoice. On expiry of this period the Customer shall be in default of payment. Statutory regulations on the consequences of default of payment shall apply.
6. Should the Customer be in default of due payments, including payments due under earlier contracts, either wholly or to a significant extent, we shall be entitled to call in all existing receivables.
7. The Customer shall be entitled to make an offset only if his counterclaims have been successfully asserted at law, are undisputed, or are recognised by ourselves. Moreover he shall be entitled to exercise a right of retention only insofar as his counterclaim is based on the same contractual relationship.
4. Delivery − transfer of risk − delivery time
1. Unless agreed otherwise, our deliveries shall be ex works or ex store. Should the contract of sale provide for delivery by carrier, we shall be entitled to ship the goods from a place other than the place of fulfilment. Risk of accidental loss, destruction or deterioration of the item of sale shall pass to the Customer upon handover. Should the item of sale be forwarded, risk shall pass upon surrender to the carrier, forwarding agent, freight carrier or person or institution appointed to effect the shipping.
2. Commencement of the delivery time stated by ourselves presupposes the settlement of all technical questions. To meet an agreed delivery deadline it shall be sufficient to have made dispatch in good time from the works or store.
3. Fulfilment of our duty of delivery further presupposes timely and proper fulfilment of any duty incumbent on the Customer. The plea of unfulfilled contract (Section 320 of the German Civil Code (BGB)) and the plea of uncertainty (Section 321 of the German Civil Code (BGB)) are hereby reserved.
4. Should the Customer be in default of acceptance, or should he culpably breach other duties of collaboration, we shall be entitled to require the reimbursement of any additional expenses. In case of culpable default of acceptance or culpable breach of other duties of collaboration, insofar as a breach of duty under the terms of Section 280, Paragraph 1 of the German Civil Code (BGB) is to be seen therein, we may in addition require damages for the loss incurred thereby. Further claims are hereby reserved.
5. Insofar as the conditions of Paragraph 4, Clause 1 are satisfied, risk of accidental loss, destruction or deterioration of the item of sale shall pass to the Customer at the time when the latter is first in default of acceptance.
6. All events of force majeur for which under the terms of Section 276 of the German Civil Code (BGB) we are not responsible shall release us from fulfilment of the contractual duties assumed, for as long as these events last. We shall have a duty to notify the Customer immediately thereof should such an event take place; we shall have a concurrent obligation to inform the Customer how long such an event is expected to last. Should such an event last longer than three months, we may withdraw from contract. In this case the counterperformance shall be reimbursed immediately.
7. Notwithstanding the rules on liability in Section 7, we shall be subject to unlimited liability under statutory regulations for loss arising from default of delivery, insofar as the default of delivery was due to a deliberate or grossly negligent breach of contract for which we are responsible. In case of simple negligence our liability shall be restricted to foreseeable, typical loss. Culpability on the part of our representatives or vicarious agents shall be imputed to ourselves.
1. The customer may withdraw from contract, in pursuance of statutory regulations, if we are responsible for the breach of duty; in case of defects (Section 6), however, statutory preconditions shall continue to apply.
2. In case of breaches of duty, the Customer must declare to us within a reasonable period of grace after we have required him to do so whether he will withdraw from contract on the grounds of breach of duty or whether he insists on delivery.