General Terms and Conditions of Purchase

for the HANS VON DER HEYDE Group

1. Preamble

1.1.The Purchaser shall order exclusively on the basis of his/her order terms; the Purchaser shall not accept any conflicting terms or conditions deviating from the terms of the order or additional conditions, unless he/she has expressly consented to their application in writing.

The implicit acceptance of deliveries or services of the Seller, as well as payments by the Purchaser, do not imply agreement with any conflicting, deviating or additional conditions of the Supplier.

1.2. Any agreement between the Seller and Hans von der Heyde is legally valid only in writing. Additional conditions or sales clauses introduced by the Seller are deemed to be rejected as long as Hans von der Heyde has not agreed to these additional provisions in writing.

1.3. The present conditions are applied to all future individual contracts between Hans von der Heyde and the Seller – with exclusion of any other General Terms and Conditions -.

1.4. Delivery contracts or delivery notices and other between Hans von der Heyde and the Seller to be concluded legal transactions as well as any additions or amendments to the latter must be in writing. Orders and also the above mentioned legal transactions may be carried out by means of remote data transmission (RDT), to the extent that this method is generally applied by the parties. In all other respects, these General Terms and Conditions of Purchase apply only to contracts between merchants.

2. Contract conclusion

2.1. A purchase contract is only deemed to be concluded when Hans von der Heyde has submitted a declaration of acceptance within the period of validity of an offer after receipt of an offer in writing.

2.2. Specifications, dimensions, weight, quantities, prices, other descriptions and other data contained in catalogues, circulars, advertisements or price lists are only approximate values and are not binding for Hans von der Heyde as long as they have not been expressly included in the contract. The data, which is sent to the Seller prior to conclusion of contract, remains the exclusive property of Hans von der Heyde and may not be made accessible to third parties.

2.3. Hans von der Heyde is entitled, within the bounds of reasonableness, to demand changes/modifications to/of the delivery item with regard to structure and design. The effects thereof, in particular the increase or decrease in costs as well as the delivery dates, are to be agreed between the parties appropriately.
Changes/modifications by the Seller require the prior approval in writing by Hans von der Heyde.

2.4. The Seller is obliged to provide Hans von der Heyde with an order confirmation in writing within 10 working days after the date of the order. If the Seller does not fulfil this obligation, Hans von der Heyde is entitled to revoke the order without stating reasons.

2.5. If insolvency proceedings or any other judicial or extra judicial proceedings are opened on the assets of the Seller, Hans von der Heyde is entitled, without giving reasons, to rescind from the contract with regard to the part of the contract that has not yet been fulfilled.

3. Purchase price

3.1. The price stated in the order is binding and is based on the agreement “Delivered Duty Paid”.

3.2. The agreed purchase price includes “free house” delivery including packaging as well as taking over transport insurance costs and statutory value added tax, which is indicated separately on the invoices.

3.3. Invoices are to be issued by the Seller immediately after shipping the goods, stating the order and item number.

3.4. Price reductions are to be communicated by the Seller in writing and will be credited to Hans von der Heyde. If Hans von der Heyde has already performed its services, it may demand the latter back, whereby the Seller waives its right to object.

4. Terms of payment

4.1. Payment and delivery must be effected in the manner agreed by the parties in the individual case. If no agreement is made in the individual case, payment is to be made within 30 days of delivery and receipt of the invoice with 3% discount or within 60 days net. The due date of early deliveries depends on the actually agreed delivery date.

4.2. All payments effected by Hans von der Heyde are made subject to the goods being delivered properly by the Seller as well as the invoice being correct.

4.3. Should Hans von der Heyde be entitled to warranty claims of any kind whatsoever from the defective delivery, then it has the right to recover payment in full until the order has been properly fulfilled by the Seller. In this case Hans von der Heyde is entitled to set-off.

5. Terms of delivery

5.1. The delivery must be made on the date of delivery laid down in the purchase contract or the order.

5.2. The Seller is obliged to inform Hans von der Heyde immediately in writing, if a delay in delivery is to be expected.

5.3. The shipping regulations of Hans von der Heyde are to be adhered to, in particular, the order number and article number of Hans von der Heyde must be stated in all dispatch papers, correspondence and invoices.

5.4. If the Seller delivers before the agreed delivery date, the latter bears all associated costs, in particular also storage by Hans von der Heyde. Should acceptance of an early delivery be impossible for Hans von der Heyde, then the latter is entitled to refuse acceptance.

5.5. In the event of a delay in delivery, Hans von der Heyde is entitled to demand lump-sum default damages of 1% of the delivery value per completed week, but not more than 5%; further legal claims (rescission and damages, instead of the performance are reserved).

The Seller is entitled to prove that no or negligible damage is incurred as a result of the default.

5.6. In individual contracts, the parties may agree upon a contractual penalty in the event of a delivery delay.

5.7. Agents, vicarious agents and other persons of the Seller who carry out work on the premises of Hans von der Heyde in performance or fulfilment of the contractual object undertake to comply with the applicable provisions of the company regulations of Hans von der Heyde. Liability for accidents which are caused by the aforementioned persons on the premises of Hans von der Heyde is excluded insofar as these accidents were not caused by an intentional or grossly negligent breach of duty by the legal representatives of Hans von der Heyde or their agents and vicarious agents.

6. Transfer of risk

6.1. Unless otherwise stated in the single supply contracts, the transfer of risk is set in accordance with the Incoterms of the International Chamber of Commerce (Incoterms 2000).

6.2. If there is no agreement on the transfer of risks, the clause “delivery duty paid” (delivered, duty paid, Incoterms 2000) applies.

7. Acceptance

7.1. Subject to § 377 HGB (German Commercial Code), Hans von der Heyde has the right to immediately inspect the delivery upon receipt for obvious or visible defects and only to accept the latter thereafter. The Seller shall bear the costs of justifiable complaints and the replacement delivery.

7.2. The values for dimensions, weights and unit numbers determined during the incoming goods inspection are binding for both contracting parties. In the case of significant deviations, Hans von der Heyde shall notify the Seller within 14 days of receipt.

8. Warranties

8.1. The goods must be examined for possible quality and quantity deviations within a reasonable period of time; the complaint is considered to have been submitted on time when it is received by the Seller within a period of 5 working days of the receipt of the goods or in the case of hidden defects as of discovery.

8.2. Hans von der Heyde is entitled to the statutory claims for defects without limitation; in any case, Hans von der Heyde is entitled to demand at its discretion remedial action or delivery of a new item from the Supplier. The right to compensation for damages, in particular, the right to claim damages in lieu of performance, is expressly reserved.

8.3. Hans from Heyde is entitled to remedy the defect itself at the expense of the Supplier if the Supplier is in default with the subsequent performance.

8.4. The period of limitation is 36 months from the transfer of risk, insofar as the mandatory provisions of §§ 478, 479 BGB (German Civil Code) do not apply.

8.5. In the case of the purchase of consumer goods, the provisions of §§ 478, 479 BGB remain unaffected.

9. Product liability / indemnification liability / insurance

9.1. As far as the Supplier is responsible for damage to a product, it shall release Hans von der Heyde from any third-party claims upon first request, insofar as the cause is located within the Supplier’s sphere of control and organisation and for which the Supplier has assumed liability to third parties.

9.2. Within the scope of its own liability for damage claims within the meaning of sub-paragraph 1, the Supplier is also obliged pursuant to §§683, 670 BGB or in accordance with §§830, 840, 426 BGB to reimburse any expenses which arise in connection with any recall actions carried out by Hans von der Heyde. Hans von der Heyde will -as far as this is possible and reasonable- inform the Supplier in advance of the content and extent of such a recall and allow opportunity for comment.

9.3. Hans von der Hyde, in consultation with the Supplier shall in accordance with the provisions of the Product Safety Act provide the competent authority with the necessary information.

9.4. The Supplier undertakes to maintain a product liability insurance with a cover sum of 10 million per person damage / property damage – flat-rate – during the duration of this of the purchase contract i.e. up to the respective expiry of the statute of limitations; should Hans von der Heyde be entitled to further damage claims, these remain unaffected.

10. Further provisions

10.1. This agreement supersedes all prior agreements which the parties may have made either orally or in writing with regard to these business areas; previous agreements become ineffective with the signing of the present General Terms and Conditions of Purchase.
10.2. The rights to this connection may not be assigned by any of the contracting parties without the prior consent in writing.

10.3. Each party shall bear the costs incurred in connection with the implementation of this contract.

10.4. Enquiries, orders, order confirmations, as well as any other correspondence of Hans von Heyde with the Seller must not be used for advertising purposes. This is not the case if Hans von der Heyde previously consented to these advertising measures in writing and the form of the advertisement was clearly presented by the Seller and approved by Hans von der Heyde in writing.

10.5. The place of fulfilment is the place to which in accordance with the order the delivery item is to be delivered.

11. Place of jurisdiction; Choice of law

This agreement is exclusively subject to German law. Any dispute arising out of the business relationship is ultimately to be decided by an arbitration court, composed by one or more arbitrators and acting on the basis of the Arbitration Rules of the International Chamber of Commerce. In lieu of recourse to the arbitration court, Hans von der Heyde is entitled to refer the matter to a materially and locally competent court of law.

12. Severability clauses

Should one of these contractual provisions be or become ineffective, the remaining provisions remain effective. Should one of these contractual provisions be or become invalid, the parties shall replace this regulation by means of renegotiation.

General conditions of sale

for HANS VON DER HEYDE company group

1. Preamble

1.1 These standard terms and conditions for the sale of export goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties.

1.2 These conditions shall govern any future individual contract of sale between the seller and the buyer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the buyer.

1.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the seller shall be subject to correction without any liability on the part of the seller.

2. Orders und Specifications

2.1 The quantity, quality and description of and any specification for the goods shall be those set out in the seller`s quotation (if accepted by the buyer) or the buyer`s order (if accepted by the seller). Any such specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties.

2.2 The buyer shall be responsible for the seller for ensuring the accuracy of the terms of any order submitted by the buyer, and for giving the seller any necessary information relating to the goods within a sufficient time to enable the seller to perform the contract in accordance with its terms.

2.3 If the goods are to be manufactured or any process it to applied to the goods by the seller in accordance with a specification submitted by the buyer, the buyer shall indemnify the seller against all loss, damages, costs and expenses awarded against or incurred by the seller in connection with or paid or agreed to be paid by the seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the seller`s use of the buyer`s specification.

2.4 The seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable statutory requirements or, where the goods are to be supplied to the seller`s specification, which to not materially affect their quality or performance.

3. Price of the Goods

3.1 The price of the goods shall be the seller`s quoted price.

3.2 The seller reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the goods to reflect increase in the cost to the seller which is due to any factor beyond the control of the seller (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials of other costs of manufacture) of any change in delivery dates.

We do especially reserve the right to change our prices accordingly, if cost reduction or cost increase should occur after the termination of a contract, in particular because of change in labour agreements or change of material prices. We will verify those to the customer on request.

3.3 Except as otherwise stated under the terms of any quotation or in any price list of the seller, and unless otherwise agreed in writing between the buyer and the seller, all prices are given by the seller on an ex works basis, and where the seller agrees to deliver the Goods otherwise than at the seller`s premises, the buyer shall be liable to pay the seller`s charges for transport, packaging and insurance.

3.4 The Price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay to the seller.

4. Terms of Payment

4.1 The buyer shall pay the price of the goods within 30 days later of the date of the seller`s invoice.

4.2 Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.

4.3 It may be agreed between the parties that the buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to the seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500.

4.4 If the buyer fails of make any payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall at his discretion be entitled to:

  • cancel the contract or suspend any further deliveries to the purchaser; or
  • charge the buyer interest on the amount unpaid, at the rate of 7 per cent per annum above European Central Bank reference rate from then being valid, until payment in full is made. The buyer shall be entitled to prove that the delay of payment caused no or little damage only.

5. Delivery

5.1 Delivery of the Goods shall be made by the buyer collecting the Goods at the seller`s premises at any time after the seller has notified the buyer that the goods are ready for collection or, if some other place for delivery is agree by the seller, by the seller delivering the Goods to that place.

5.2 Where delivery of the Goods is to be made by the seller in bulk, the seller reserves the right to deliver up to 3% more or 3% less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be in the quantity ordered.

5.3 The buyer may only enforce his amends due to failure, if the default in delivery resulted from a negligent or intentional breach of contract on the part of the seller. The same applies if the seller may be held responsible for the breach of any further essential contractual obligation.

5.4 If the buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the goods had been delivered. The seller shall arrange fort the storage of the goods at the risk and cost of the buyer. If required by the buyer the seller shall insure the goods at the cost of the buyer.

6. Transfer of Risks

Risk of damage to or loss of the goods shall pass to the buyer as follows:

  • In the case of goods to be delivered otherwise than at the seller`s premises, at the time of delivery or, if the buyer wrongfully fails to take delivery of the goods, the time when the seller has tendered delivery of the goods
  • In the case of goods to be delivered at the seller`s premises (“ex works”, Incoterms 2000) at that time when the seller notifies the buyer that the good are available for collection.

7. Retention of Title

7.1 The goods delivered by the seller remain the property of the seller (“reserved goods”) until all outstanding claims from the purchase contract and from the current (present and future) joint business relationship, including interest and costs, have been paid in full.

7.2 Subject to Section 107 paragraph 2 of the German Insolvency Code seller shall be entitled to withdraw from the contract and to demand return of the item purchased in case of a behavior of buyer contrary to the contract, in particular in case of default of payment. After having retrieved the item purchased seller shall be entitled to dispose of the goods otherwise. The receipts shall be count against the account payable by buyer less reasonable realization costs.

7.3 As long as the goods have not been fully paid buyer shall hold the goods as the seller’s fiduciary agent, and shall keep the goods separate from its property and that of third parties, properly stored, protected an insured. Buyer shall also mark the goods as property of seller.

7.4 Buyer shall be revocably entitled to sell the retained goods in a proper course of business. All claims and rights of buyer resulting from the resale of the retained goods and business relations to subsequent buyers shall already now be assigned to seller, no matter whether the retained goods are resold, unprocessed or processed. In case the retained goods are sold by buyer together with other goods which are not seller’s property, the assignment of buyer’s purchase price claim shall only extend to the value of the retained goods.

7.5 Buyer shall be revocably entitled to collect all debts arising of the resale of the retained goods as long as buyer meets its payment obligations. The power to collect debts and the right to process the retained goods shall expire, even without an express revocation, if and at the time buyer stops its payments, becomes in default with its payment obligations, in the event of an executed attachment or if a petition for opening of insolvency proceedings has been filed. Any outstanding amounts assigned to seller which buyer will receive thereafter shall promptly be accrued in a special account with the separate designation to be indicated by seller. Upon request of seller, buyer shall inform seller without undue delay in writing of the debtors of the assigned claim(s) and notify the debtors of the assignment of the claims to seller. Seller shall be entitled to inform buyer’s purchaser about the assignment and to collect the accounts receivable.

7.6 The retention of ownership shall also extend to any uniform item resulting from a combination or inseparable intermixture of the retained goods with other materials. If the retained goods are combined or inseparably intermixed with other materials not owned by seller, seller shall acquire co-ownership in the uniform item in the ratio of the invoice value of the retained goods to the invoice value of other materials not owned by seller. If the combination or intermixtures is effected in a way that any material of buyer is considered as the main thing, then buyer already now assigns to seller the co-ownership share specified in the previous sentence. Furthermore, the provisions of this section 7 concerning retained goods shall apply mutatis mutandis to the uniform item resulting from the combination or intermixture of the retained goods.

7.7 Any processing or transformation of the retained goods by the purchaser shall be deemed effected for seller with the consequence that seller shall directly acquire title to the newly manufactured items together with materials not owned by seller, seller shall acquire co-ownership in the newly manufactured items in the ratio of the invoice value of the retained goods to the invoice value of the other processed materials not owned by seller. Furthermore, the provisions of this section 7 concerning retained goods shall also apply mutatis mutandis to the newly manufactured items resulting from the processing or transformation of retained goods.

7.8 Buyer shall be considered as a depository for seller in respect of seller’s emerging property or coownership share, respectively.

7.9 If third parties take up steps to pledge or otherwise dispose of the goods – also after combination, intermixture, processing or transformation – as well as any other impairment of the property rights of seller in the retained goods – buyer shall immediately notify the seller in writing in order to enable the seller to seek a court injunction in accordance, with Section 771 of the German Code of Civil Procedure. If buyer fails to do so in due time he will be held liable for any damages caused.

7.10 The seller shall on demand of buyer release any part of the collateral if the realizable value of the collateral held in favor of seller exceeds the relevant total claim of seller to be secured by more than 10 %. It is to the seller’s decision to release those parts of the collateral suitable for him.

8. Warranties and Exclusion Clauses

8.1 The buyer shall examine the Goods as required by German Law (§§ 377, 378 of the German Commercial Code) and doing so check every delivery in any respect.

8.2 The seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the buyer, will be free from design defects and suitable for the purposes intended by the buyer.

8.3 The seller shall not be liable for the Goods being fit for a particular purpose unless otherwise agreed upon, to which the buyer intends to put them.

8.4 The above warranty is given by the seller subject to the following conditions:

  • the seller shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the buyer;
  • the seller shall not be liable under the above warranty if the total price for the goods has not been paid by the due date for payment;
  • the above warranty does not extend to parts, materials or equipment manufactured by or on behalf of the buyer unless such warranty is given by the manufacturer to the seller.

8.5 This warranty does not cover defects in or damages to the products which are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application.

8.6 Any discharge from liability will be void if a defect results from a negligent or intentional breach of contract on the part of the seller. The same applies if the seller may be held responsible for the breach of any further essential contractual obligation. Any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall be notified to the seller within six months from the date of delivery.

8.7 The buyer is entitled to demand the delivery of any substitute Goods, or repair or a reduction of the purchase price as set forth with the terms of each individual contract of sale.

8.8 Where any valid claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the seller in accordance with these Conditions, the seller shall be entitled at the seller`s sole discretion to either replace the Goods free of charge or repair the goods. If the seller is neither ready nor able to either repair or replace the goods the buyer shall be entitled at the buyer`s sole discretion to claim for a reduction of price or the cancellation of the contract.

9. Miscellaneous Clauses

9.1 The seller reserves the right to improve or modify any of the products without prior notice, provides that such improvement or modification shall not affect the form and function of the product.

9.2 This agreement supersedes and invalidates all other commitments and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior the date hereof, and which shall become null and void from the date of the agreement is signed.

9.3 This agreement shall not be assigned or transferred by either party except with the written consent of the other.

9.4 Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.

10. Choice of Law; place of Jurisdiction

10.1 This agreement shall be governed by and construed in accordance with German law. And each party agrees to submit to the jurisdiction of the courts having jurisdiction for the seller.

10.2 The seller shall have the right to bring a claim before a court at the buyer`s principal place of business or at his discretion before any other court being competent according to any national or international law.

11. Severability Clauses

  • should any of those contractual agreements be invalid or will become so, the remaining agreements shall stay effective.
  • Should any of those contractual agreements be invalid or will become so, the parties are replacing those agreements by renegotiation.

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