General Terms and Conditions (GTC)
- Validity
(1) All deliveries, services, offers from and agreements with H&R Spezialfedern GmbH & Co. Spezialfedern GmbH & Co. KG, Elsper Straße 36, 57368 Lennestadt, phone: +49 2721
92600, e-mail: [email protected], hereinafter referred to as “H&R”, are made exclusively on the basis of these GTC, hereinafter referred to as “GTC”. These shall be an integral part of all contracts that H&R concludes with its customers for the products and services offered by H&R, even if no express reference is made to them. They shall also apply to all future deliveries, services or offers, even if they are not agreed again separately.
(2) Any terms and conditions of purchase/ business of the customer that deviate from these GTC are hereby explicitly rejected. Even if H&R refers to a letter that contains or refers to the customer’s terms and conditions of purchase/ business or confirms or delivers orders without express objection, this shall not constitute consent to the validity of third-party terms and conditions of business.
(3) Customers within the meaning of these GTC are entrepreneurs, as H&R’s offer is directed exclusively at entrepreneurs. The transmission of an inquiry or order therefore also constitutes confirmation by the customer that it is acting as an entrepreneur. An entrepreneur within the meaning of § 14 BGB (German Civil Code) and these GTC is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.
- Offer and Conclusion of Contract
(1) The legal relationship between H&R and the customer shall be governed solely by the purchase contract concluded in writing or in text form, including these GTC. H&R may accept orders and/or commissions within 7 days of receipt. Acceptance of the contract shall only be legally valid if H&R confirms the order in writing and/or text form. This shall also apply to all ancillary agreements made directly or by the representative. Oral pledges made by H&R prior to the conclusion of this contract shall not be legally binding and oral agreements between the contracting parties shall be replaced by the written contract.
(2) Additions and amendments to the contract shall require the written form/text form to be effective.
(3) If the customer orders goods electronically, the contractual text will be stored by H&R and sent to the customer on request along with the GTC via email.
- Prices
The prices apply to the scope of services and delivery listed in the order confirmation. Additional or special services will be charged separately. Prices are quoted in EUR ex works, including statutory VAT and including packaging costs. Shipping costs are added to the prices and, if applicable, customs duties, fees and other public charges for export deliveries.
- Shipment/Transfer of Risk
(1) Unless specifically stipulated or agreed, the mode of shipment shall be at the discretion of H&R, without H&R assuming responsibility for the most favourably priced shipment.
(2) The risk shall pass to the customer at the latest when the goods are handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if H&R has assumed other services. If dispatch or handover is delayed due to a circumstance for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are ready for dispatch and H&R has notified the customer that the goods are ready for dispatch.
- Permissible Deviations
Information provided by H&R on the goods or services (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. representations and illustrations) by H&R are not guaranteed quality specifications, but merely a description or labelling of the goods or services. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
- Payment
Invoices from H&R are generally payable within 10 days less 2% discount or within 30 days of receipt in cash without deduction. The customer shall be in default 30 days after receipt of the invoice. If the date of receipt of the invoice is uncertain, the customer shall be in default no later than 30 days after the due date and receipt of the service rendered by H&R. In the event of default, interest shall be charged at the statutory rate of 9% p.a. above the base rate. The claim of higher interest and further damages in the event of default shall remain unaffected. H&R expressly reserves the right to accept bills of exchange or cheques; they shall only be accepted in lieu of performance and shall only be deemed a means of payment with discharging effect once they have been honoured.
- Retention of Title
(1) The goods delivered shall remain the property of H&R until full payment of all current and future claims arising from the supply relationship between the customer and H&R with respect to goods of H&R. In cases where the customer makes payment by cheque, but in connection therewith H&R assumes liability by bill of exchange – in whatever form – for the amount or a partial amount of the cheque sum, only the encashment of the bill of exchange shall be deemed payment with regard to the rights of retention of title.
(2) The customer shall be entitled to sell the reserved goods in the ordinary course of business until the realization event occurs. However, the customer is not permitted to pledge the goods or assign them as security.
(3) In the event of resale of the goods delivered subject to retention of title, the customer hereby assigns to H&R by way of security the resulting claims against the customer’s buyer. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with respect to the reserved goods, e.g. insurance claims or claims resulting from unlawful acts in the event of loss or destruction. H&R accepts this assignment. Until revocation by H&R, the customer shall remain entitled or authorized to collect the claims assigned to H&R as security in its own name when they fall due. H&R may only revoke this authorization in the event of realization. After revocation of the direct debit authorisation, the customer shall immediately provide H&R with the information on the assigned claims required for collection and notify the debtors of the assignment.
(4) Any treatment or processing of the goods shall be carried out by the customer in the name and for the account of H&R as manufacturer and H&R shall acquire either direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. If the reserved goods are combined, mixed or blended with other products to form a single item and if one of the other items is to be regarded as the main item, H&R shall, insofar as the main item belongs to H&R, transfer co-ownership of the single item to the customer on a pro rata basis in the ratio specified in sentence 1. In this case, H&R shall retain co-ownership of the newly created item in the ratio of the cumulative value of the previous main item and the reserved goods to the value of the newly created item.
(5) If third parties seize the reserved goods, in particular by attachment, the customer shall immediately inform them of thw ownership of the reserved goods and inform H&R of any enforcement measures by third parties against the reserved goods in order to enable H&R to enforce ist property rights.
(6) If the securities to which H&R is entitled under the above provisions exceed the claims to be secured by 20%, H&R will, at the customer’s request, release the reserved goods and the items or claims replacing them at the discretion of H&R.
(7) If H&R withdraws from the contract (realization event) in the event of breach of contract by the customer – in particular default in payment, H&R will be entitled to demand the reserved goods.
- Delivery Date and Default
(1) The delivery date is given as a non-binding forecast unless a binding date has been expressly agreed in writing. Bindingly agreed delivery periods shall commence on the date of dispatch of the order confirmation by H&R, but not before all details of execution have been clarified. Delivery deadlines shall be deemed to have been met if the goods have been handed over to the forwarding agent, carrier or other third party commissioned with the transport at the agreed time.
(2) If H&R has expressly agreed binding delivery periods in writing and is unable to meet them for reasons for which H&R is not responsible (non-availability of the service), H&R shall inform the buyer of this and at the same time notify the buyer of the expected new delivery period. If the service is not available within the new delivery period either, H&R shall be entitled to withdraw from the contract in whole or in part; H&R shall reimburse any consideration already paid by the buyer. A case of non-availability of the service in this sense shall be deemed to be the impossibility or late delivery by H&R’s supplier, provided that H&R has concluded a congruent hedging transaction and H&R is not at fault.
(3) In the event of a delay in delivery, the customer must set a reasonable grace period with a warning of refusal. The grace period must be at least 10 working days. If the grace period expires without result, the customer may only enforce the right to withdraw from the contract or claim damages for that part of the scope of the contract which has not been fulfilled by H&R. The customer may not invoke loss of interest either in the case of partial default or in the case of default on the entire contract. If H&R is in default or if delivery becomes impossible for H&R for whatever legal reason, H&R’s liability for damage shall be limited based on clause 11 of these GTCs.
- Refusal of Performance, Reservation of the Right of Withdrawal
In the event of any significant deterioration in the customer’s financial situation which occurs after conclusion of the contract or which only then becomes known to H&R on the basis of specific customary information, H&R shall be entitled to withhold the performance owed and to demand that the customer eliminates any risk to the purpose of the contract by providing sufficient security. If the customer does not meet the request for the provision of security within a reasonable period of time, H&R shall be entitled to withdraw from the contract.
- Warranty
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) In the event of material defects in the goods, H&R shall initially be entitled and obliged to choose between repair or replacement delivery within a reasonable period of time.
(3) Customers must notify H&R in writing of obvious defects or other defects that were recognizable during an immediate, careful inspection within a period of seven working days from receipt of the goods or otherwise within seven working days upon discovery of the defect; otherwise the enforcement of the warranty claim shall be excluded and the goods shall be deemed approved. Timely despatch shall be sufficient to meet the deadline. The customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
(4) The warranty shall not apply if the customer modifies the goods or has them modified by third parties without H&R’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
- Exclusion of Liability
Liability on whatever legal grounds shall be limited to damage caused by H&R or its vicarious agents intentionally or through gross negligence or through slight negligence in the event of a breach of duties essential for the fulfilment of the purpose of the contract. In cases of slight negligence, H&R’s liability shall be limited to the amount of damage typical for comparable transactions of this type that were foreseeable at the time the contract was concluded or at the latest when the breach of duty was committed. This explicitly excludes claims arising from product liability and from liability consequences in the area of physical injury and damage to health.
- Final Provisions
(1) The place of jurisdiction for any disputes arising from the business relations between H&R and the customer shall, at the discretion of H&R, be Lennestadt or the customer’s registered office. Lennestadt shall be the exclusive place of jurisdiction for legal actions against H&R. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.
(2) The relations between H&R and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
(3) Should individual provisions of the contract with the customer, including these GTC, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially invalid provision shall be replaced with a provision the economic success of which comes as close as possible to that of the invalid provision.
H&R is a registered trademark of H&R Spezialfedern GmbH & Co KG, Lennestadt. All logos, photos, sketches and texts shown are legally protected. Any use or utilisation in any form, even in extracts, shall be prohibited without our prior written consent. Infringement will be prosecuted under civil and criminal law. All technical data is approximate. Changes in the sense of technical progress are expressly reserved.
H&R is a registered trademark of H&R Spezialfedern GmbH & Co KG, Lennestadt, Germany. All logos, photos, sketches and texts are legally protected. Anyone using this material without our prior written permission is liable to prosecution. All technical data is approximate. All data subject to change.