General Terms and Conditions of Purchase
of Hans von der Heyde GmbH & Co. KG
1.1. Hans von der Heyde GmbH & Co. KG (hereinafter referred to as “Buyer”) orders exclusively on the basis of its terms and conditions of order; the Buyer does not accept any terms and conditions contrary to or deviating from the terms and conditions of order or any additional terms and conditions unless the Buyer has expressly agreed to their validity in text form.
The tacit acceptance of deliveries or services of the Seller as well as payments by the Buyer do not imply any agreement with conflicting, deviating or additional conditions of the Seller.
1.2. Any agreement made between the Seller and the Buyer shall only become legally effective if it has been made between the parties in text form or has been confirmed in text form without delay thereafter. If the agreement is not written, formulated or confirmed in text form, it shall be deemed not to have been concluded from the outset. Further additional conditions or sales clauses introduced by the Seller shall be deemed to have been rejected until the Buyer has agreed to these additional provisions in text form.
1.3. These terms and conditions shall form the basis of all future individual contracts between the Buyer and the Seller – with the simultaneous exclusion of any general contractual terms and conditions to the contrary.
1.4. Delivery contracts or delivery call-offs and other legal transactions to be concluded between the Buyer and the Seller must be in writing. Verbal delivery agreements only serve to outline the content of the contract. The contract is not actually concluded until it has been presented in text form. Any addition
or amendment made to the concluded contract, if made verbally in advance, must be fixed at least in text form within 24 hours, otherwise the addition or amendment shall be deemed not to have been made and shall become retroactively null and void. Otherwise, these General Terms and Conditions of Purchase shall only apply to companies within the meaning of Section 310 (1) of the German Civil Code (BGB).
Conclusion of contract
2.1. A purchase contract shall only be deemed to have been concluded if the Buyer has submitted a declaration of acceptance in text form after receipt of an offer within the offer period. If no binding offer is communicated, acceptance shall be deemed not to have been declared if acceptance is not declared in text form within 14 days. Silence is expressly not deemed to be acceptance.
2.2. Dimensions and weights, quantities, prices, other descriptions and other data as contained in catalogues, circulars, advertisements or price lists are only approximate values and shall not be binding on the Buyer unless they have been expressly included in the contract. These data, which were transmitted to the Seller before the conclusion of the contract, remain the exclusive property of the Buyer and may not be made accessible to third parties.
2.3. Within the bounds of what is reasonable, the Buyer is entitled to demand changes to the delivery item with regard to design and execution. In this context, the effects, in particular of the additional or reduced costs as well as the delivery dates, are to be regulated appropriately between the parties. Changes by the Seller require prior approval in text form by the Buyer.
2.4. The Seller is obliged to send the Buyer an order confirmation in text form within 10 working days after the date of the order. Silence is expressly not deemed to be acceptance. If the Seller does not comply with this obligation, the Buyer shall be entitled to revoke the order after 10 days without giving reasons. The revocation of the offer shall also be deemed to have been declared without further action by the Buyer if the Seller has not responded to the offer in text form within 14 days. A contract can only be concluded by a new offer from the Buyer and acceptance of the offer by the Seller.
2.5. If insolvency proceedings or other judicial or extra-judicial proceedings are opened against the assets of the Seller, the Buyer shall be entitled to withdraw from the unfilled part of the contract without stating any reasons, provided that a delay in payment or delivery of more than 30 days had already occurred prior to the opening of insolvency proceedings. This shall also apply if this delay in payment or delivery has occurred in transactions with other companies of the OKE group.
3.1. The price stated in the order is binding and based on the agreement “delivered duty paid”.
3.2. The agreed purchase price includes delivery “free domicile” including packaging as well as assumption of transport insurance and statutory value added tax, which is shown separately on the invoices.
3.3. Invoices are to be issued by the Seller immediately after dispatch of the goods, stating the order and article number.
3.4. Price reductions are to be communicated by the Seller in text form and will be credited to the Buyer. If the Buyer has already rendered its services, it can demand these back, whereby the Seller waives objections or defences of any kind.
Terms of payment
4.1. Payment and delivery shall be made in the manner agreed by the parties in each individual case. Unless agreed otherwise in individual cases, payment shall be made within 30 days of delivery and receipt of the invoice with a 3% discount, or within 60 days net. The due date for early deliveries shall be based on the delivery date actually agreed.
4.2. All payments made by the Buyer are subject to the express reservation of proper delivery by the Seller as well as the correctness of the invoice in terms of calculation and price.
4.3. Should the Buyer be entitled to warranty claims of any kind whatsoever arising from the defective delivery, the Buyer shall have the right to recover the full amount of the payment until proper performance by the Seller and to return or send the item at the Seller’s expense, provided that the recovery of the full amount is not contrary to good faith due to special circumstances. In this case the Buyer is entitled to set-off.
5.1. Delivery shall be made on the delivery date specified in the purchase contract or the order.
5.2. The Seller is obliged to inform the Buyer immediately in text form if a delay in delivery occurs.
5.3. All shipping documents, delivery notes, letters and invoices must state the order number and article number of the Buyer.
5.4. If the Seller delivers before the agreed delivery date, it shall bear all associated costs, including in particular storage by the Buyer. If acceptance of the premature delivery is impossible for the Buyer, the latter shall be entitled to refuse acceptance. In this case, the delivery must be made again on the agreed delivery date.
5.5. In the event of a culpable delay in delivery, the Buyer is entitled to demand lump-sum damages for the delay amounting to 1% of the value of the delivery per full week, but not more than 4.5%; we reserve the right to assert further legal claims (withdrawal from the contract and damages in lieu of performance).
The Seller shall have the right to prove that no damage or substantially lower damage has been incurred as a result of the delay.
5.6. A contractual penalty can be agreed between the parties on an individual basis in the event of a delay in delivery.
5.7. The Seller’s vicarious agents, assistants and other persons who carry out work on the Buyer’s premises in the performance or fulfilment of the subject matter of the contract shall be obliged to observe the applicable provisions of the Buyer’s plant regulations. Liability for accidents which occur to the aforementioned persons on the Buyer’s works premises is excluded, insofar as these accidents were not caused by an intentional or grossly negligent breach of duty on the part of the Buyer’s legal representatives or their vicarious agents. In the case of bodily injury and damage to health, however, the Buyer is already liable for slight negligence.
Transfer of risk
6.1. Unless otherwise stated in the individual delivery contracts, the time of transfer of risk shall be determined in accordance with the Incoterms of the International Chamber of Commerce in the respective valid version.
6.2. If there is no agreement on the transfer of risk, the clause “delivered, duty paid” (Incoterms in the respective valid version) shall apply.
7.1. Subject to § 377 of the German Commercial Code (HGB), the Buyer shall have the right to inspect the delivery immediately upon receipt for obvious or visible defects and to accept the delivery only thereafter. Unless otherwise agreed in text form, formal acceptance shall always take place. The Seller shall bear the costs of justified complaints and replacement delivery.
7.2. The values for dimensions, weights and quantities determined during the incoming goods inspection are binding for both contracting parties. In the event of significant discrepancies, the Buyer shall notify the Seller within 14 days of the receipt inspection.
Warranty for defects
8.1. The Seller guarantees that the goods it has delivered are free of material defects and defects of title and, if applicable, that they have the guaranteed quality.
8.2 The goods shall be inspected within a reasonable period of time for any deviations in quality and quantity; the complaint shall be deemed to have been made in good time if it is received by the Seller within a period of five working days, calculated from the date of receipt of the goods or, in the case of hidden defects, from the date of discovery.
8.3. The Buyer shall be entitled to the statutory claims for defects in full; in any case, the Buyer shall be entitled to demand that the Seller, at its discretion, either rectify the defect or deliver a new item. The right to claim damages, in particular damages in lieu of performance, is expressly reserved.
8.4. The Buyer shall be entitled to remedy the defect itself at the Seller’s expense if the Seller itself is in default with subsequent performance.
8.5. The limitation period is 24 months, calculated from the transfer of risk.
Product liability / indemnity Liability / insurance cover
9.1. Insofar as the Seller is responsible for product damage, it shall be obliged to indemnify the Buyer against claims for damages by third parties on first demand, insofar as the cause lies within its sphere of control and organisation and the Seller itself is liable in relation to third parties.
9.2. Within the scope of its own delivery liability for cases of damage within the meaning of para. 1, the Seller shall also be obliged to reimburse the Buyer for any expenses pursuant to §§ 683, 670 BGB or pursuant to §§ 830, 840, 426 BGB which result from or in relation with a recall action carried out by the Buyer. The Buyer shall inform the Seller in good time in advance of the content and scope of such a recall measure – insofar as this is possible and reasonable – and give the Seller the opportunity to comment.
9.3. The necessary notification of the respective competent authority in accordance with the provisions of the Product Safety Act shall be undertaken by the Buyer in coordination with the Seller.
9.4. The Seller undertakes to maintain a product liability insurance with a sum insured of 10 million euros per personal injury / property damage – lump sum – for the duration of this contract, i.e. until the respective expiry of the limitation period for defects; if the Buyer is entitled to further claims for damages, these shall remain unaffected.
10.1. This agreement replaces all previous agreements to the contrary previously made by the parties regarding these business fields orally or in text form; previous agreements to the contrary become ineffective with the signing of these General Terms and Conditions of Purchase.
10.2. The rights to this connection may not be assigned by either party without the prior consent in text form of the other party.
10.3. Each Party shall bear its own costs incurred in connection with the performance of this contract.
10.4. Inquiries, orders, order confirmations as well as any other correspondence of the Buyer with the Seller may not be used for advertising purposes. This shall not apply if the Buyer has given its prior consent in text form to the advertising and the form of the advertising has been clearly stated by the Seller and approved by the Buyer in text form.
10.5. The place of performance shall be the place to which the delivery item is to be delivered in accordance with the order.
Jurisdiction and choice of law
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Any dispute arising out of the business relationship shall be finally settled by arbitration by one or more arbitrators acting in accordance with the Rules of Arbitration of the International Chamber of Commerce.
Instead of resorting to arbitration, the Buyer shall also be entitled to bring its case before an ordinary court having jurisdiction as to the subject-matter and location.
12.1 Should individual provisions of this contract be wholly or partially invalid or void, or become wholly or partially invalid or void as a result of a change in the legal situation or as a result of supreme court rulings or in any other way, or should this contract contain any loopholes, the parties agree that the remaining provisions of this contract shall remain unaffected and valid.
12.2 In this case, taking into account the principle of good faith, the contracting parties undertake to agree on a valid provision in place of the invalid one which comes as close as possible to the meaning and purpose of the invalid provision and of which it can be assumed that the parties would have agreed on at the time of the conclusion of the contract if they had known or foreseen the invalidity or ineffectiveness. The same applies if this contract should contain a loophole.
As at: May 2021