As of April 2009
I General Provisions
(1) The company heco gmbh only acts on the basis of these Sales, Delivery, and Payment Conditions in their respectively current version for its principals. These Conditions are considered as recognised in all parts upon issuance of an order. Only declarations made in writing are authoritative with regard to the scope of deliveries or services.
(2) These General Contractual Conditions are also considered as agreed in a binding manner if the company heco gmbh fulfils orders or performs services pursuant to an order with knowledge of opposing or deviating conditions of the respective contractual partner without reservation.
(3) General Terms and Conditions of the Ordering Party only apply insofar as they are expressly recognised in writing as binding by heco gmbh. As a precaution, deviating general terms and conditions of the Ordering Party are hereby objected to.
(4) Ancillary agreements and additions and changes to contract agreements always require the written form. This also applies to the written form clause above. Verbal ancillary agreements are to be considered invalid insofar as their validity is not expressly agreed in writing by heco gmbh.
(5) Insofar as individual provisions of contracts that arise in a legally binding manner or these General Terms and Conditions should prove to be invalid in part or in whole, this shall not affect the validity of all other contractually made agreements. Invalid provisions are to be replaced by agreements that correspond to the economic purpose pursued by the invalid provision.
II Contract Conclusion
(1)Any offers for goods, prices, or deliveries from heco gmbh are subject to change and do not found an offer to conclude a contract in the legal meaning insofar as nothing else is expressly defined in writing in the respective offer. This applies in particular to any offers on the order pages of the website of heco gmbh, which are merely a request that customers make an offer.
(2) The conclusion of a contract does not occur until heco gmbh accepts an order from a customer. Therefore, orders on the part of the customer do not found any obligations for heco gmbh except in the event that the corresponding delivery of goods takes place (implied acceptance of contract) or order confirmation in written or text form (express acceptance of contract). A verbal agreement does not found a contract between the business partners.
(1) Indicated prices are net prices without packaging, shipping, alloy surcharge, and without the respective value-added tax or turnover tax. The determination of the amount of the alloy surcharge depends on the variable alloy surcharge applicable on the day of the delivery insofar as nothing else is expressly determined in writing in the respective offer.
(2) The indicated prices are ex works or ex warehouse insofar as nothing else is expressly agreed in writing.
(3) Insofar as carriage paid delivery is agreed, this applies to handover of the goods to the respective recipient of goods.
(4) Additional expenses on account of a special kind of shipment desired by the principal (e.g. express and air freight) are to be borne by the respective Ordering Party.
IV Shipping and Transfer of Risk
(1) Insofar as nothing else is agreed, the performance in kind risk is transferred to the Ordering Party in the event that shipment is agreed at the time of handover of the goods to the shipper/freighter or, if applicable, when the goods are picked up by order of the recipient. This also applies in the event of drop shipments, carriage paid, FOB or CIF transactions.
(2) In the event that the Ordering Party is supplied using transportation vehicles provided by heco gmbh, the German General Conditions for Forwarders (ADSp) are applicable; in doing so the transfer of risk at the time that the goods loaded in an orderly manner are brought into a public place is to be suppressed.
(3) The delivery is to be inspected by the customer upon receipt for completeness, assortment, and characteristics without delay. Any complaints are to be made in writing to heco gmbh without delay in writing or in text form with indication of the delivery slip number. Complains made only verbally are not sufficient notice of defects by the customer.
V Delivery, Time Periods
(1) Only those delivery dates expressly promised in writing by heco gmbh are considered to be agreed in a binding manner between the parties. Otherwise, the delivery shall occur in regular business operations by heco gmbh at the latest within four weeks after delivery of the delivered goods to heco gmbh and/or finished post-processing or production by heco gmbh. Upon request of the Ordering Party, heco gmbh will announce the respectively applicable delivery date of the supplier or the respectively scheduled production time for the respective case.
(2) Insofar as the Ordering Party does not observe the agreed payment conditions or otherwise infringes obligations concerning the contract, heco gmbh is entitled to postpone delivery of the ordered goods.
(3) The Ordering Party is entitled to set a reasonable grace period in the event of non-compliance with a delivery period expressly agreed in writing or in the event of a delay in performance that is not merely temporary on account of circumstances for which heco gmbh is not responsible. The Ordering Party can withdraw from the contract after expiry of this grace period.
(4) The delivery is considered to have occurred in a timely manner insofar as the goods left the plant/warehouse of heco gmbh or the plant/warehouse of the subcontractor of heco gmbh before the expiry of the delivery period.
(5) Should circumstances or events for which heco gmbh is not responsible lead to a delay in fulfilment that concerns this duty to perform (such as disturbances in traffic or operations, shortages of materials or energy, strikes or lock-outs), a corresponding prolongation of the delivery periods named under §5 para. 1 is considered agreed. The same applies insofar as suppliers of heco gmbh cannot fulfil contractual duties in a timely manner on account of the occurrence of unforeseeable circumstances of the above-named kind.
(6) Insofar as a hindrance pursuant to §5 para. 5 of these General Terms and Conditions cannot be rectified in a reasonable period of time, heco gmbh is entitled to withdraw from the contract in whole or in part without the duty to subsequent delivery. Claims for damages on the part of the Ordering Party are excluded in these cases.
(7) Partial deliveries by heco gmbh are allowable at any time without limit insofar as there are not compelling interests of the Ordering Party opposing this in exceptional cases. The Ordering Party bears the burden of proof for proving such compelling interests. Every partial delivery is considered an independent legal transaction.
(1) Complaints on account of recognisable defects, incorrect deliveries, or significant quantity deviations are to be announced in written or text form to heco gmbh without delay, at the latest 5 days after delivery of the goods. Otherwise, making warranty claims is excluded.
(2) Notices of defects that are not immediately recognisable must be made immediately after they have been discovered. Should the Ordering Party not make notice of any defects within the period of time pursuant to para. 1, the goods are considered to have been authorised as defect-free.
(3) This does not apply insofar as the law stipulates other exclusion periods in a compulsory manner or in cases of injury to life, limb, or health, in the event of intentional or grossly negligent dereliction of duty on the part of heco gmbh or regarding claims made on account of defects hidden in a fraudulent manner.
(4) Timely dispatch of a detailed notice of defects is sufficient for complying with the periods pursuant to § 6 (1) and (2). The Ordering Party bears the full burden of proof regarding all prerequisites for claims, in particular concerning the defective nature of the delivered goods, the time the defect is found, and the timely nature of the notice of defects.
(5) For the rest, the statutory provisions regarding the time-barring of warranty claims and the stopping and restarting of the respectively applicable periods remain unaffected.
(6) In the event of a delivery to a business person/company, the warranty claims are excluded at the latest one year after transfer of risk pursuant to the regulations of the provisions above insofar as there are no shorter periods that are to be observed.
(7) In the event of justified complaints, heco gmbh is entitled to subsequent improvement or replacement delivery against return of the goods complained about according to its free discretion. Missing quantities will be delivered subsequently.
(8) Defective partial deliveries do not found a right to suspend the respective order or other orders of the Ordering Party.
(9) Insofar as the supplementary performance fails, the Ordering Party can ask for a reduction of the remuneration (price reduction) or cancellation of the contract (withdrawal). In the event of minor infringement of contract or that only minor defects are found, the Ordering Party has no right to withdrawal.
(10) Insofar as the Ordering Party should choose to claim rights of withdrawal on account of a defect of quality or title after failed supplementary performance, it is not entitled to any additional claims for damages.
(11) In the event that damages are claimed by the Ordering Party after failed supplementary performance, the goods remain at that party insofar as this can be reasonably expected of it. If applicable, that sum that corresponds to the difference between the agreed purchase price and the value of the defective goods is to be paid as damages.
(12) Insofar as the Ordering Party makes changes or repairs to the concerned delivered goods or has such made without the prior separate written agreement of heco gmbh, any liability whatsoever concerning the respective subject of delivery/performance lapses.
(13) heco gmbh assumes no liability for damages that arise on account of the following circumstances or actions: Unsuitable or improper use, incorrect start up, natural wear and tear, incorrect or negligent treatment of the delivered goods and chemical or electromechanical influences insofar as heco gmbh is not responsible for any contributory culpability with regard to this.
(14) If a defect is a result of product descriptions/technical drafts given to heco gmbh by the Ordering Party that are incorrect or incomplete, warranty claims are excluded. In this case, all services provided by heco gmbh on the basis of a corresponding order are to be remunerated by the Ordering Party in the full amount.
(15) Insofar as the Ordering Party/Contracting Partner is a company, it is agreed that principally solely that information pursuant to the product descriptions of heco gmbh applies with regard to the characteristics of the goods. Public statements, descriptions, or information from heco gmbh for advertisements cannot be considered binding promises concerning the characteristics of the goods.
(16) Claims made by the Ordering Party on account of damages that do not directly concern the goods delivered by heco gmbh - insofar no compulsory unlimited or expanded liability on the part of heco gmbh arises on account of legal provisions - are excluded.
(17) The same applies - insofar as legally allowed - in the event of consequential damages on account of defects arising to the Ordering Party’s means of production.
(1) Claims for damages or reimbursement of expenses of the Ordering Party, regardless of legal basis, are principally excluded insofar as nothing else arises from the following provisions.
(2) The exclusion of liability pursuant to §7 (1) of these General Contractual Terms does not apply insofar as heco gmbh is liable pursuant to compulsory legal provisions pursuant to the German Product Liability Act (Produkthaftungsgesetz) as a result of intention or gross negligence, on account of injury to limb or health or with regard to the infringement of material contractual duties.
(3) Damages on account of the infringement of material contractual duties, on account of arrears, and on account of impossibility are always limited to the foreseeable damages typical of the contract. This does not apply in the event of intentionally incorrect actions of the employees of heco gmbh or with regard to the injury to life, limb, or health of a third party.
(4) The provisions above do not lead to a change in the burden of proof to the disadvantage of the respective Ordering Party.
(5) In the event of notices of defects that do not occur in a timely manner or interventions made in an unauthorised manner concerning the goods delivered by heco gmbh, any liability whatsoever concerning heco gmbh lapses. At the same time, any and all guarantees made by heco gmbh lapse.
(6) The duty to pay damages of heco gmbh is - insofar as legally allowed - always limited to that amount that is agreed as remuneration pursuant to the contract with regard to that exact service or partial service to be performed.
(7) The limitations above only apply insofar as heco gmbh acts for business persons acting as the Ordering Party.
(8) The liability on account of civil offences is restricted and limited to the same extent as the contractual liability above. This does not apply to third parties not participating in the contract. The liability on account of intentional or grossly negligent incorrect behaviour on the part of heco gmbh and its employees is not limited.
(9) No additional express contract penalties are agreed. These require a separate written agreement regardless of whether they are for the benefit or to the detriment of heco gmbh.
VIII Credit Basis
(1) The fulfilment of obligations by heco gmbh pursuant to the regulations of the respective contract can be deferred insofar as there is just doubt regarding the creditworthiness of the respective Ordering Party.
(2) In the event of significant worsening of the financial conditions, cession of payment, compulsory execution, the opening of insolvency proceedings, liquidation or transfer of business and the death of the Ordering Party, heco gmbh is entitled to demand securities. The same applies insofar as the Ordering Party pledges inventories, receivables or goods or hands them over to other creditors as securities and insofar as the Ordering Party should be in default of payment of claims to which heco gmbh is entitled.
(3) Insofar as no sufficient securities are provided by the ordering party, heco gmbh is entitled to withdraw from the contract and/or demand damages. The same applies insofar as heco gmbh should receive negative reports regarding the creditworthiness of the ordering party.
(4) Insofar as heco gmbh should withdraw from the contract pursuant to §8 of these General Terms and Conditions, the ordering party is obligated to pay for all shipping, storage, and other expenses that have already arisen.
IX Ownership Rights
(1) The goods delivered by heco gmbh remain its property until all duties on the part of the respective Ordering Party concerning the business relationship existing between it and heco gmbh have been fulfilled in full.
(2) Insofar as the value of all securities to which heco gmbh is entitled exceeds the value of the secured claims by more than 20%, heco gmbh shall release a corresponding part of the securities upon request of the ordering party.
(3) During the existence of the retention of title, any pledging or transferring as security of the goods subject to retention of title by the Ordering Party is prohibited.
(4) The Ordering Party obligates itself to inform heco gmbh without delay in the event of pledging, seizure, or other disposals concerning the goods subject to retention of title. The same applies in the event of access to the goods subject to retention of title by third parties or third party companies.
(5) Further sale of the goods subject to retention of title is solely allowed in regular business transactions and under the condition that the Ordering Party receives corresponding payments from its customers or only hands over the goods subject to retention of title to its customers with reservation of ownership.
(6) Insofar as the Ordering Party does not fulfil the duties named above, heco gmbh is authorised to demand handover of the goods subject to retention of title regardless of other rights. In this case the Ordering Party has no right to possession.
(7) With the order for the goods subject to retention of title, the Ordering Party now already assigns the claims arising against its customers from the further sale including all ancillary rights to heco gmbh. The Ordering party remains entitled until revocation to collect the claims assigned to heco gmbh to this extent. The Ordering Party is obligated to inform heco gmbh about the amount of the corresponding claims and the names of the respective third-party debtor upon request.
(8) In the event of the processing of the goods subject to retention of title, heco gmbh is considered the manufacturer and hereby attains ownership of the new item. If the processing is done together with new materials, heco Handels GmbH acquires co-ownership of the item manufactured in this manner in the relationship of the gross invoice amount of the goods subject to retention of title to the sum of the gross purchase price of the other processed materials.
(9) Insofar as the claims against the respective Ordering Party to which heco gmbh is entitled are not paid in full, this party is obligated to forward the entire amount of the amounts collected or to be collected on account of the further sale of the goods subject to retention of title to heco gmbh.
(10) In the event of combining, mixing, or blending of the goods subject to retention of title with another item and that item is to be considered the main item, the co-ownership concerning the main item is transferred to heco gmbh based on the proportion of the gross invoice value of the goods subject to retention of title.
(11) In the event of non-compliance with the conditions named above, all rights of the Ordering Party to sell and process the goods subject to retention of title and collect the receivables assigned to heco gmbh lapse. The same applies in the event of protests to cheques or bills of exchange for which the respective Ordering Party is responsible.
X Payment Conditions
(1) The Ordering Party obligates itself to pay claims to which heco gmbh is contractually entitled without deduction within 30 days of the date of the delivery of the goods.
(2) The date of receipt of payment at our accounts is the authoritative date. Cheques and bills of exchange are only considered payment after they have been redeemed. The forwarding of bills of exchange and prolongations of term are not considered payment.
(3) In the event that the above-named term of payment is exceeded or in the event of incomplete payment, the Ordering Party is in arrears without a reminder.
(4) Insofar as the Ordering Party is in arrears, heco gmbh, without prejudice to other claims, is entitled to demand interest on arrears in the amount of 8% above the respective base rate effective beginning from the time of the due date of the corresponding payment or partial payment. In this case, heco gmbh is also entitled to make all claims towards the Ordering Party due immediately and/or demand securities, if applicable before delivery, withhold outstanding deliveries, or withdraw from contracts not yet completely fulfilled at this time in part or in whole.
(5) Claims to which the Ordering Party is in fact or putatively entitled against heco gmbh can only be set off against those of heco gmbh against the Ordering Party in the event that the former claims are undisputed or have been established by court of law. The Ordering Party can only claim rights of retention insofar as they concern claims arising from the exact same contractual relationship.
(6) Insofar as the Ordering Party is a business person, claiming a refusal to performance or a right of retention requires the prior written authorisation of heco gmbh.
Applicable Law, Place of Performance, and Legal Venue
(1) With consideration for all legal transactions concerning heco gmbh, German law has sole applicability to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and any other international agreements.
(2) Place of performance is the domicile of heco gmbh. Sole legal venue for all legal disputes including any bills of exchange and document processes is Karlsruhe insofar as legally allowed. Nevertheless, heco gmbh is entitled to file suit alternatively at the location of the domicile or branch office of the Ordering Party.
XII Partial Invalidity
Insofar as individual provisions of these General Terms and Conditions are or become invalid in part or in whole, this shall not affect the validity of the remaining provisions.