Heitling Fahrzeugbau | Heitling Anlagenbau | Huning Umwelttechnik

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Overview

I. Conclusion of contract, basis of contract
II. Scope of delivery/service
III. Prices
IV. Terms of payment
V. Retention of title
VI. Terms for delivery
VII. Passing of risk, shipment and insurance
VIII. Performance
IX. Liability for defects
X. Liability
XI. Assembly
XII. Place of performance, venue and choice of law
XIII. Miscellaneous provisions

Contracting parties

Huning Maschinenbau
Maschweg 39
49324 Melle


AG Osnabrück [Osnabrück Local Court]/ Commercial Register HRB 21184
VAT ID No.: DE 218851566

Managing director with exclusive power of representation: Walter Huning

For questions, complaints and queries please contact our customer service between 09.00 h and 18.00 h on weekdays under 0 54 22 / 6 08-260 or by e-mail under iinfo@huning-maschinenbau.de

I. Conclusion of contract, basis of contract

The documentation forming part of Supplier's quotation, in particular illustrations, drawings, plans, calculations, tables and weight specifications provides approximate values, unless expressly declared to be binding. Supplier reserves title and copyright to all quotation documents; they shall not be made available to third parties. The contract shall be concluded subject to the present terms of delivery upon Supplier's written order confirmation. The requirement for written form will also apply to transmission by telecommunication. Deviating conditions of Orderer, which have not been acknowledged by Supplier in writing, shall not be binding, even if Supplier did not expressly object to them. These terms and conditions shall also apply exclusively, if and when Supplier effects delivery unconditionally in full knowledge of the contradictory or deviating nature of Orderer's General Terms and Conditions. The present terms and conditions shall also apply to future transactions even without being expressly agreed. Additional agreements and amendments shall be subject to written agreement.

II. Scope of delivery/service

The scope of delivery and service as well as agreed quality within in the meaning of Art. 434 of the German Civil Code [BGB] shall be subject to Supplier's written order confirmation. Supplier shall be entitled to changes to the delivery item required in terms of construction and manufacturing as well as due to legal requirements, as far as they will only result in minor changes to the delivery item and if such changes are reasonable upon Orderer. Supplier will inform Orderer on any such changes as early as possible. If the delivery item is subject to special requirements in countries outside the Federal Republic of Germany, Orderer shall be responsible for complying with such requirements. Orderer will be immediately notified if Supplier has any reservations concerning the intended type of design.
Any documentation pertaining to quotations, including, illustrations, drawings, weight and size specifications provides approximate values and will only be understood as such, unless expressly declared to be binding. We reserve title and copyright to any cost estimates, drawings and other documentation; they may not be made available to third parties. Any drawings and documents relating to quotations will be immediately returned upon our request or if the order is not placed with us.

III. Prices

Unless otherwise specified prices shall be ex works, including loading at works, however, excluding packing and unloading. Prices are subject to statutory value-added tax as applicable on the date of invoicing. We reserve the right to modify our prices accordingly, if costs should increase after conclusion of the contract, in particular due to wage agreements or increases in production costs. We will furnish evidence of these to Orderer upon request. A change in productions costs within the meaning of Clause 1 has occurred in particular, if operational costs for raw materials, parts to be delivered by third parties, staff, tax, levies, charges etc. have increased and if a period of more than 2 months has passed between the order and the delivery or service.

IV. Terms of payment

Unless agreed differently, payments will be effected in cash and without any deductions free Supplier's payment office within 8 days upon receipt of invoice. In case of new customers, deliveries of spare parts and repairs will be made against cash on delivery or payment in advance. If agreed payment dates are exceeded. interest in the amount of the applicable bank interest rate (usual bank interest rate for short-term credits, however, at least at an annual interest rate of 2% above the basic interest rate, Art. 247 BGB) will be charged following a reminder. If Orderer is able to prove that Supplier has suffered a lesser loss for interest charges, that damage will be calculated. Assertion of further damage caused by delay, including any further interest damage, shall be reserved to Supplier. Counterclaims denied by Supplier or not legally established shall not entitle Orderer to retention or setoff. If, after conclusion of contract, facts should become known which objectively are such as to impair Orderer's creditworthiness, any claims of Supplier including bills receivable shall become due immediately. Such circumstances shall also entitle Supplier to carry out any outstanding services only against advance payment or a security. Checks and bills of exchange will only be accepted on account of performance. Orderer shall bear any discount expenses and currency losses which may occur up to the due date. Representatives or travelling salespersons of Supplier shall not be authorized to accept any payments unless they have been given a written authority of collection.

V. Retention of title

Supplier retains title to the goods until all claims, including receivables which may arise in the future, also from contracts concluded simultaneously or later, have been settled. This shall also apply when individual or all receivables have been transferred to a current account and have been netted and acknowledged. The retention of title shall also include interest and costs incurred and shall continue until any checks and bills offered for payment have been encashed. Pledges and assignments as collateral shall only be admissible with Supplier's consent. Processing, blending or commingling by Orderer are carried out on behalf of Supplier, without any obligations incurred by Supplier. As far as Supplier does not gain ownership or co-ownership by operation of law, Orderer already now assigns co-ownership in the objects created in this manner to the amount of the value of the goods subject to retention and will keep them on behalf of Supplier with the diligence of a prudent businessman.
Should Orderer sell goods subject to retention or use them in such a manner as to form part of a real estate, he already now assigns to Supplier any resulting receivables to the amount of the value of the goods subject to retention with all and any rights including the right to grant a cautionary mortgage ranking prior to the rest. If Orderer is the owner of the real estate, this advance assignment shall, to the same extent, include any receivables created by selling the real estate or real estate property rights. The advance assignment shall also include any balance claims of Orderer.
Subject to co-ownership and receivables and furthermore subject to revocation at any time, Supplier hereby authorizes Orderer to sell and process the goods subject to retention in the ordinary course of business and to collect any receivables assigned. Orderer undertakes to inform Supplier immediately in case of resale.
Orderer shall be obligated to inform Supplier immediately of any third-party access to goods subject to retention or assigned receivables and will provide any information and documents required for Supplier to assert his legal rights. Should Orderer not fulfill his duties towards Supplier or should there be any reasonable doubts as to his creditworthiness, Orderer shall be obligated to release the goods subject to retention upon request, to disclose assigned receivables and to provide Supplier all and any documents and information required to collect such receivables. Taking back as well as pledging of goods by Supplier always constitutes a withdrawal from the contract. Any costs incurred by taking back and realizing the delivery item will be borne by Orderer. Realization costs will be deemed to amount to 10% of the realization proceeds inclusive of value-added tax, without any proof being required. They may be higher or lower if Supplier is able to prove higher costs or if Order is able to prove lower costs respectively. Supplier shall be authorized to take out insurances on the goods subject to retention against theft, breakage, fire, water and other damage at Orderer's expense, unless Orderer can prove that he has taken out such insurances upon request of Supplier. Should the value of securities provided to Supplier exceed receivables by more than 20%, Supplier shall be obligated to release securities at his own discretion upon Orderer's request.

VI. Terms of delivery

The term of delivery shall not be binding and starts upon dispatch of the order confirmation, however not until the Orderer has provided all documents and technical data, permits or releases required and until receipt of the agreed advance payment. The term of delivery is deemed to be observed, if the delivery item has left the works by the end of this term or if readiness for dispatch has been announced. Events of force majeure shall entitle Supplier to extend the term of delivery by the duration of the obstacle plus a reasonable lead-time. If performance of the contract cannot be reasonably expected from a party, it is insofar entitled to withdraw from the contract. All circumstances which significantly impede delivery or render it impossible for the Supplier shall be regarded as force majeure, e.g. currency and commercial policy measures or other acts by a government, strikes, lockouts, operational interruptions (shortage of material, energy, labor and transport capacity as well as production interruptions and delay in deliveries on part of suppliers) as well as obstructions of traffic, regardless of whether such circumstances occur on part of the Supplier or a subsupplier. If Supplier is already in default of delivery upon occurrence of such circumstances, any grace periods granted by Orderer will be extended accordingly.If Supplier delays in delivery, Orderer is entitled to claim a default damage to be proved – to the exclusion of an further claims and rights except for the statutory right to withdraw from the contract – for every full week of the delay up to 0.5% of the price of that part in the entire delivery, which due to the delay cannot be utilized in due time or as agreed in the contract, however, not exceeding a total of 5% of the contract price. This limitation of liability shall not apply, if the delay has been caused by intentional or grossly negligent conduct of Supplier or any of his agents. If Orderer claims damage in lieu of performance under Art. 281, 325 BGB, Supplier shall only be liable up to the difference between the contract price and the amount expensed for a covering transaction by Orderer taking into account his duty to avert, minimize or mitigate loss. The same shall apply, if it is impossible for Supplier to fulfill his obligations. These limitations of liability shall not apply, if the delay or impossibility has been caused by intentional or grossly negligent conduct of Supplier or any of his agents. Any liability for loss of profit and business interruption shall be excluded. If shipment is delayed by more than one month following notification of readiness for shipment for reasons not attributable to Supplier, Supplier shall be entitled to store delivery parts at Orderer's risk and expense. In case of storage in his own works Supplier shall be entitled to charge at least 0.5% of the contract price of the delivery parts stored per month. If Supplier withdraws from contract for reasons attributable to Orderer, in particular in case of a delay in acceptance, he shall be entitled to claim liquidated damages to the amount of 25% of the agreed net invoice value in lieu of performance. Orderer shall have the option to prove that no or only minor damages have occurred.

VII. Passing of risk, shipment and insurance

Risk shall pass to Orderer no later than upon dispatch of the delivery parts, also in case of partial deliveries or if Supplier has agreed to assume responsibility for additional services, e.g. shipment costs or transport and and installation. In case of transport problems the risk shall pass upon notification of readiness for shipment.
Shipment will be effected for the account and at the risk of Orderer.
Supplier shall not be responsible to take out insurances against damages of any kind. To the extent Supplier takes out insurances at his own reasonable discretion or at Orderer's express wish, Orderer shall reimburse the amounts disbursed.

VIII. Performance

Partial deliveries shall be admissible. The deliver parts shall be accepted by Orderer, even in case of minor damages, notwithstanding his rights from warranty claims concerning the delivery.

IX. Warranty for defects

Orderer shall only be entitled to claim warranty rights, if and insofar as he has complied with his duty to examine and to give notice of defects under Art. 377 of the German Commercial Code [HGB]. To the exclusion of any further claims, Supplier shall be liable for defects in the shipment as follows:
To the extent that the purchased item is defective, Supplier is at his own discretion entitled to subsequent performance in the form of removal of the defect or in the form of delivery of a new product. In the case of removal of defects we shall only be obliged to bear the costs to the extent that they are not increased by transferring the purchased item to a place different from the place of performance and up to a maximum amount equivalent to the purchase price. Any replaced parts shall become Supplier's property. In case of essential third-party products, Supplier's liability shall be limited to assigning the liability claims which he has against the supplier of such third party products. If the claims assigned in this manner cannot be enforced against the third party, Supplier shall be liable according to the present terms and conditions.
If subsequent performance fails Orderer shall be entitled to withdraw from the contract or to reduce the purchase price at his option.
Any further claims of Orderer exceeding statutory provisions shall be excluded. This exclusion of liability shall not apply in case of intentional or grossly negligent conduct of the Supplier or any of his agents.
Used machines will be delivered under exclusion of any warranty.
The warranty period shall be 12 months from the passing of the risk.
Warranty claims are excluded if the defect can be attributed to non-adherence to operating, servicing and installation instructions, unsuitable or improper use or storage, faulty or negligent handling, natural wear and tear or tampering with the delivery item by the Orderer or a third party.

X. Liability

Unless otherwise stated in these terms and conditions or any other agreements, Supplier shall be liable towards Orderer only in case of intention or gross negligence on part of Supplier or any of his agents. Any liability for slight negligence shall be excluded. This exclusion of liability shall apply to all contractual and statutory claims. Liability under the Product Liability Act shall remain unaffected. To the extent Supplier can also be held liable for slight negligence based on contractual or statutory provisions, liability shall be limited to the extent that can be covered by a German liability insurance. If an employer's liability insurance exists, liability in the scope of such insurance shall be limited to damages which were foreseeable at the conclusion of the contract.
Supplier's liability shall not exceed Orderer's liability towards his end-customers.

XI. Assembly

If assembly by Supplier has been agreed with respect to the delivered item, the special terms and conditions of assembly will apply. In the scope of assembly work Orderer will be responsible for electrical installation work as well as laying water supply and discharge lines. Any masonry, concrete, demolition, pouring and plastering work as well as mounting any parts leading through the roof membrane will also be performed by Orderer.

XII. Place of performance, venue and choice of law

Place of performance for any deliveries and payments shall be Supplier's head office. The venue, also in case actions on checks and bills, shall be Supplier's place of business. However, Supplier shall have the right to chose Orderer's place of business as venue.
The law of the Federal Republic of Germany shall apply. The UN Sales Convention shall not apply.

XIII. Miscellaneous provisions

Should individual provisions of these terms and conditions be ineffective, the remaining provisions shall remain unaffected. Supplier will process data on his own data processing system. Therefore, personal data will be collected, stored, processed and deleted, if applicable, for our own purposes.
If either of the contracting parties suspends payments or if insolvency proceedings are opened on its assets or if it applies for out-of-court composition proceedings, the other party shall be entitled to withdraw from the part of the contract not yet fulfilled.

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