General terms and conditions
General Terms and Conditions of Heyco Products GmbH ("Heyco" in the following) as of January 2018
Section 1 Scope
1. Heyco only supplies on the basis of the following general terms and conditions of sale and delivery ("General Terms and Conditions"), even if not specifically referred to in individual cases in the context of an existing business relationship.
2. Deviating terms and conditions of the purchaser/customer, in particular conditions of purchase, do not apply, even if they are not expressly objected to in individual cases.
3. These General Terms and Conditions do not apply to contracts with consumers.
Section 2 Offer and Contract
1. All offers are non-binding.
2. The purchase contract is concluded upon receipt of the order confirmation which is sent exclusively by e-mail to the purchaser/customer.
3. Heyco is entitled to make changes to the delivered items at any time which Heyco considers necessary for technical reasons or for reasons of product maintenance and which do not affect the products' functionality. Such reasons are in particular changes of the manufacturer of the raw material, dimensional changes that do not affect the functionality of the product, as well as, the delivery of an alternative product that fulfills the agreed function.
Section 3 Submitted Documents
At all documents provided to the purchaser/customer in connection with the order, such as, calculations, drawings, etc., Heyco reserves ownership and copyrights. These documents may not be made accessible to third parties, unless Heyco gives the purchaser/customer its express written consent.
Section 4 Prices
1. Unless otherwise agreed in writing, Heyco's prices quoted are ex works excluding packaging and plus value added tax in the respective valid amount. Packaging costs will be charged separately.
2. The indicated prices are given in Euro only.
Section 5 Terms of Payment and Default
1. Payments must be made net without any deductions within 30 days of the invoice date.
2. Payments are always used to settle the oldest due debt, plus accrued default interest and legal costs.
3. After expiry of the payment period, the purchaser/customer is in default. A written reminder is not required. Payment terms are respected if Heyco can dispose of the payment (credit, redemption of checks).
4. In the event of default of payment by the purchaser/customer, without prejudice to further claims, interest in the amount of 9 (nine) percentage points above the basic interest rate per year in accordance with sections 247, 288 German Civil Code (Bürgerliches Gesetzbuch- BGB) shall be due without a reminder.
5. If the purchaser/customer culpably fails to meet its payment obligation or if Heyco is entitled to a right of refusal according to section 321 paragraph 1 German Civil Code (Bürgerliches Gesetzbuch- BGB), all of Heyco's outstanding receivables against the purchaser/customer will become immediately due for payment, even if checks or bills of exchange with a later due date have been accepted by way of payment.
Section 6 Delivery and Service Time
1. For the type and scope of delivery, the order confirmation is decisive. The delivery date is agreed individually or specified by Heyco in the order confirmation. The delivery period begins with the issuing of the order confirmation, but not before the provision of the documents, approvals, clearances to be procured by the purchaser/customer, as well as the receipt of the agreed down payment, if this is to be paid immediately after the conclusion of the contract. If the delivery period of Heyco is not specified, the delivery period is 10 weeks.
2. In the event of strikes, lockouts (also with suppliers, carriers and upstream suppliers), cases of force majeure (such as interruption of planned traffic conditions, fire or natural restrictions) as well as other circumstances that Heyco is not responsible for, the items will be delivered immediately after cessation/termination of the circumstance. If one of these cases occurs, Heyco will inform the purchaser/customer about this without delay and, if possible, at the same time announce an estimated new delivery deadline. The rights of the purchaser/customer pursuant to section 11 of these General Terms and Conditions and the statutory rights of Heyco, in particular in the case of an exclusion of the obligation to perform (for example, due to impossibility or unreasonableness of performance and / or subsequent performance), remain unaffected.
3. In the case of call orders (Abrufauftrag), the purchaser/customer must determine the delivery or service time in such a way that Heyco has sufficient time and opportunity to make appropriate arrangements. If the purchaser/customer - for whatever reason - does not duly fulfill his obligation to call up deliveries and services, Heyco shall be entitled to deliver the entire lot size upon expiry of a grace period set by Heyco, or to withdraw from the contract and be entitled to further claims, for example to claim damages.
4. The contract is concluded under the reservation of complete, correct and timely self-delivery by suppliers. In this case, the purchaser/customer is to be informed immediately about the unavailability of the products. Claims for damages of the purchaser/customer are excluded.
Section 7 Shipping, Transfer of Risk, Default of Acceptance
1. Unless otherwise agreed, the delivery is uninsured at the expense and for the account of the purchaser/customer.
2. If, in case of freight paid deliveries, delivery items are damaged on the transport, the purchaser/customer is obligated to inform Heyco immediately in writing or by written notice by email or fax. Claims against the transport company are assigned to the purchaser/customer and must be asserted by the latter against the transport company.
3. If the purchaser/customer does not accept the offered contracted delivery item or the dispatch or delivery is delayed at the request of the purchaser/customer, the risk of accidental deterioration and accidental loss of the delivery item shall pass to the purchaser/customer upon notice of dispatch readiness.
Section 8 Set-Off, Right of Retention
Offsetting by the purchaser/customer is only permissible with non-appealable, undisputed claims or claims that are ready for decision. This also applies to the assertion of rights of retention.
Section 9 Retention of Title
1. Heyco retains ownership of the delivered goods until full payment of all claims under the delivery contract. This also applies to all future deliveries, even if Heyco does not expressly state that such is the case. Heyco is entitled to take back the purchased item if the purchaser/customer acts in violation of the contract.
2. As long as the property has not been transferred to it, the purchaser/customer is obligated to handle the purchased goods with care. In particular, it is obligated to adequately insure these at its own expense against theft, fire and water damage at replacement value. As long as the ownership has not yet been transferred, the purchaser/customer must promptly notify Heyco in writing if the delivered item is pledged or otherwise exposed to interventions of third parties. If the third party is unable to reimburse Heyco the judicial and extra-judicial costs for an action as per section 771 German Civil Procedure Code (Zivilprozessordnung – ZPO), the purchaser/customer is liable for the loss incurred by Heyco.
3. The purchaser/customer stores the reserved goods for Heyco free of charge. It shall maintain the conditional goods in proper condition and insure them at its own expense to the extent necessary to exercise due commercial care. In case of a court-ordered seizure or other interventions of third parties, the purchaser/customer has to inform Heyco thereof without undue delay, to oppose the intervention and to point out the co-ownership of Heyco. The costs for the prevention of intervention are to be borne by the purchaser/customer.
4. In the event of a breach of contract by the purchaser/customer, especially in cases of default in payment, Heyco shall be entitled to withdraw from the contract upon expiry of an extension of time, to demand the retention of the reserved goods without the purchaser/customer having a right of retention, to enter the purchaser's/customer's business premises to take the reserved goods and, where appropriate, to demand assignment of the purchaser's/customer's surrender claims.
5. The purchaser/customer is entitled to modify and process (be- und verarbeiten) the reserved goods in the ordinary course of business and sell the new item in the ordinary course of business. If the purchaser/customer processes the reserved goods, the processing takes place in the name and for the account of Heyco as manufacturer. Heyco acquires ownership of the new property. In this case, the right of expectancy of the purchaser/customer continues in the altered item. If the purchased item is processed into other objects that do not belong to Heyco, Heyco acquires joint ownership of the new item in proportion of the objective value of the purchased item to the other processed items at the time of processing. The same applies to the cases of mixing (Vermischung) and combination (Verbindung). If the mixing or combination takes place in such a way that the item of the purchaser/customer is to be regarded as the main item, it is agreed that the purchaser/customer transfers co-ownership to Heyco on a pro rata basis and keeps the resulting sole ownership or co-ownership in custody for Heyco. In order to secure the claims against the purchaser/customer, the purchaser/customer also assigns such claims against a third party to Heyco, which accrue to it through the combination (Verbindung) of the reserved goods with real property; Heyco hereby accepts this assignment.
Section 10 Material Defects and Notice of Defects
1. If a product supplied by Heyco, within the statute of limitation pursuant to section 10 paragraph 4 and regardless of the operating period, has a material defect, Heyco will, for the purpose of subsequent performance, remedy the defect or deliver an item free of defects at its own discretion, if the cause of the defect already existed at the time of transfer of risk.
2. If Heyco decides to remedy the defect, the purchaser/customer in consultation with Heyco has to offer the opportunity to rectify the defect within a reasonable period.
3. If the subsequent performance fails, the purchaser/customer may, without prejudice to any claims for damages, in principle withdraw from the contract, reduce the purchase price or demand compensation for its expenses. In the case of a minor breach of duty, in particular in the case of minor defects, the purchaser/customer has no right of withdrawal.
4. Claims for defects expire after twelve (12) months. The period begins with the delivery of the goods. The above sentence 1 does not apply in so far as the law requires longer periods in accordance with sections 438 paragraph 1 no. 2 (property for buildings), 479 paragraph 1 (right of recourse) and 634 a (construction defects) German Civil Code (Bürgerliches Gesetzbuch- BGB).
5. The purchaser/customer must report in writing material defects within a period of two weeks after delivery of the goods, in case of hidden defects within two weeks after discovery; otherwise the assertion of material defect liability is excluded. To meet the deadline, the timely dispatch is sufficient. The purchaser/customer bears the full burden of proof for all claim prerequisites, for the defect itself, for the time of the discovery of the defect and for the timeliness of the complaint.
6. In the case of complaints, the purchaser/customer may withhold payments to an extent that is in reasonable proportion to the material defects that have occurred. However, the purchaser/customer may only withhold payments if it has duly notified the deficiency in accordance with section 10 paragraph 5 above and when the submitted notice of defect is justified beyond any doubt. If the complaint is unjustified, Heyco is entitled to demand compensation for the expenses incurred by the purchaser/customer.
7. Claims for defects do not exist for insignificant deviations from the agreed quality, for insignificant impairments to the usability, for natural wear and tear or damage after the transfer of risk as a result of faulty or negligent treatment, excessive use, unsuitable equipment, unauthorized rectification or arise from special external influences not assumed under the contract. If the purchaser/customer or third parties make improper changes or repair works, there are no claims for defects for these and the consequences arising therefrom. If the goods are taken from the Heyco original packaging and are not processed within four (4) working weeks or stored improperly (sunlight, climatic changes), or packaged by the purchaser/customer, there are no claims for defects for these and the consequences thereof.
8. The following section 11 also applies to claims for damages. Further or other claims than those stipulated in section 10 of the purchaser/customer against Heyco and its agents for material defects are excluded.
Section 11 Compensation and General Limitations of Liability
1. Heyco is fully liable for damages caused by intent or gross negligence on the part of legal representatives or executives, or in the case of intentional or grossly negligent breach of contractual obligations by legal representatives, executive employees or agents that jeopardises the achievement of the purpose of the contract, i.e. the delivery and transfer of faultless goods (essential contractual obligations).
2. In the case of slightly negligent breaches of duty, Heyco's liability is limited to foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our legal representatives, executive employees and agents. Any liability for damages based on a slightly negligent breach of non-material contractual obligations is excluded.
3. Further claims of the purchaser/customer than provided in these general terms and conditions, especially for consequential damages and lost profits, are excluded. The exclusion of liability shall not apply to intent or gross negligence on the part of Heyco's legal representatives or executive employees and for cases in which the consequential loss and the loss of profit are part of the contractual damage caused by the legal representatives, executive officers or agents of Heyco. In this case the liability is limited to the foreseeable and contract-typical average damage. The above provision does not apply to the violation of a material contractual obligation as defined in section 11 paragraph 1.
4. The aforementioned limitations of liability do not apply to claims of the purchaser/customer from product liability law. Furthermore, the limitations of liability shall not apply in the event of intentional or negligent damages to body and health or loss of life of the purchaser/customer.
Section 12 Property Rights
If the purchase contract refers to a device or product that is not protected by patent law but by which a patent law protected process is conducted by Heyco, the purchaser/customer does, in case of doubt, not acquire the right to exercise the protected process. Prerequisite for this is the additional conclusion of a paid license agreement. This license shall be deemed to have been granted to the purchaser/customer to the extent that only functional elements and, if applicable, auxiliary elements, which were previously duly acquired from Heyco, are used to exercise the protected process.
Section 13 Place of Fulfillment and Jurisdiction
For both parts place of fulfillment and place of jurisdiction is Munich.
Section 14 Applicable Law
German law applies exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) is excluded.
General Terms and Conditions of Heyco Products GmbH (01/2018)