General Terms and Conditions of Heko Ketten GmbH, Wickede (Ruhr)

Last updated 01.01.2010
Our General Terms and Conditions below apply exclusively to sale and delivery; other terms and conditions will not become the subject of the contract.
We hereby expressly object to them.
This also applies in the case where the buyer has arranged a special form for the objection.

1. Conclusion of contract, scope of delivery

a) Our offers are subject to change. Delivery contracts, other agreements and ancillary agreements, in particular insofar as they deviate from these general terms and conditions, will only be concluded by our written confirmation.
b) The scope of delivery is based on our written confirmation. A reference to DIN regulations is a statement of work and not an assurance of properties.
The latter requires explicit and written agreement on an individual basis.

2. Prices

a) In the absence of special agreements, prices are ex works, excluding packaging, plus statutory value-added tax.
b) In the event of agreed delivery periods of more than four weeks, our prices are subject to change; we reserve the right to increase prices within the scope of or to compensate for price and cost increases.
c) If prices are stated based on quantity and the purchase quantity changes, the price will change accordingly.

3. Delivery time, delay

a) The agreed delivery periods apply. These begin following the specification of all the details required for performance and all other conditions to be fulfilled by the buyer.
b) The delivery period is extended appropriately in the event of measures in the context of industrial action, in particular in the event of strikes and lockouts, as well as in the event of obstacles for which the user is not responsible, insofar as these have a significant influence on the completion or delivery of the object of purchase.
This also applies if the circumstances set out above occur with suppliers that the user uses to fulfil his contractual obligations and agreed performance.
c) Compliance with the delivery period presupposes the fulfilment of the contractual obligations of the buyer.
d) If the user is late with delivery, the buyer is entitled to withdraw from the contract or to assert claims for damages after expiry of a reasonable grace period.
The buyer’s claim for damages only extends to direct damages caused by delay.

4. Delivery contracts on demand

If, in the case of delivery contracts on demand, the goods are not requested or divided up on time, we are entitled, after providing a grace period without success, to divide them up ourselves and deliver the goods or to withdraw from the part of the delivery contract that is still in arrears.

5. Test procedures, acceptance

If the buyer wishes for us to conduct necessary tests, he must inform us of this. The place and scope of the tests are carried out by mutual agreement and are agreed upon by the conclusion of the contract.

6. Packaging

The packaging of the delivery stock is only carried out if this has been specially agreed.

7. Shipping and transfer of risk

a) Goods declared ready for dispatch must be taken over immediately, otherwise we are entitled, after setting a deadline without success, to dispatch them at our discretion or to store them at the expense and risk of the buyer.
In case of storage, the goods are deemed to be delivered.
We expressly point out the consequences of the acceptance delay, in particular the risk of property transferred to the buyer.
b) In the absence of a special agreement, the choice of means of transport and route of transport will be at our discretion.
c) Our services are ex works.
Upon handing over to the railway, the forwarding agent or carrier, the risk of property passes to the buyer.
The same applies if we have taken delivery at a place other than the place of performance at the instruction of the buyer.

8. Terms of payment

a) Our invoices should be paid by the 15th day of the month following the delivery or partial delivery ex works without any deduction of a cash discount.
b) The buyer is only entitled to withhold or offset payments if there are undisputed or legally established payment claims.
c) We accept discountable and duly taxed bills of exchange on account of payment if this has been expressly agreed beforehand. Credits for bills of exchange and cheques are given subject to receipt minus expenses, valued on the day on which we can dispose of the equivalent value.
d) If the payment deadline is not met, interest will be charged at the amount of the credit costs charged by the banks, but at least 3% above the respective discount rate of the Deutsche Bundesbank.
e) If the terms of payment are not respected or facts become known that give rise to reasonable doubts as to the creditworthiness of the buyer, all our claims, including those for which we have accepted bills of exchange, will be due immediately. The same applies to incurred costs, services and goods in progress, as well as goods that are finished but not yet delivered. In these cases, outstanding deliveries and services by us must only be carried out against advance payment or security. After a reasonable grace period, we can withdraw from the contract or demand compensation for non-performance. Furthermore, due to the agreed reservation of title, we can prohibit the resale and processing of the delivered goods and demand their return or transfer of indirect ownership of the delivered goods at the expense of the buyer. The buyer hereby authorises us to enter his company in the stated cases and to collect the delivered goods. The return of the goods will only constitute a withdrawal from the contract if we expressly declare this.

9. Retention of title

a) Sales and deliveries are subject to retention of title.
b) The retention of title does not expire with the payment of the purchased item to which the retention of title relates, but only when all claims due to us against the buyer from the business relationship have been settled.
c) In the case of the handling and processing of goods delivered by us under retention of title by the buyer, our retention of title will also extend to the manufactured goods, which serve to secure our claims instead of the delivered goods.
d) In the event that our goods delivered under retention of title are mixed by the buyer, the retention of title in accordance with Sections 948, 947 German Civil Code (BGB) will extend to our co-ownership share.
e) The resale or further processing of the goods subject to retention of title is only permitted by the buyer for ordinary business transactions subject to the condition that he also agrees to a retention of title with his customers. The buyer is not entitled to other dispositions concerning the goods subject to retention of title, in particular pledging and transfer as collateral.
f) In the case of resale or processing, the buyer hereby assigns to the user all claims to which he is entitled against third parties from the sale and/or processing, with all ancillary and preferential rights and all other security rights, as well as other claims connected with the object of purchase, in the amount of the invoice value of the goods delivered under reservation of title.
g) If the value of the existing collateral exceeds the secured receivables by more than 20% in total, we undertake to release the excess cover.
h) The buyer is obliged to provide the user with the information necessary to assert the claim and to fill in the documentation and other documents used to prove the claims.
i) The user will be informed without undue delay of seizure and/or confiscation of the goods subject to retention of title or the goods resulting from processing by third parties.

10. Warranties

a) We guarantee the perfect condition of the parts manufactured and delivered by us in accordance with the agreed technical delivery regulations at the time of the transfer of risk within the scope of the statutory provisions.
b) The buyer will report defects in writing immediately after receipt of the goods at the destination, concealed defects immediately after discovery of the defect, but no later than within 6 months of the transfer of risk.
c) The seller is not responsible for defects which were known to the buyer at the time of the transfer of risk or which remained unknown to him as a result of gross negligence, Section 460 BGB.
d) In the event of justified, timely notification of defects, the seller is entitled to a right of rectification. Further claims of the buyer are excluded. Section 463 BGB remains unaffected. If the repair or replacement fails, the buyer is entitled to rescind the contract or reduce the purchase price after expiry of a reasonable grace period to be set by the buyer.
e) The user will be given the opportunity to identify the notified defects. In urgent cases, the user will immediately identify the notified defects.
Goods subject to complaint must be returned immediately to the customer at the request of the buyer.
f) Further claims by the buyer, in particular claims for compensation for consequential damages, will be excluded if our legal representatives or our executive employees are not responsible for intent or gross negligence in view of the defect. The liability of the German Product Liability Act (PHG) remains unaffected.
g) The above provisions will apply after delivery of goods other than those stipulated in the contract and accepted by the buyer as fulfilment.

11. Tools

a) The tools and devices created for production remain in our possession and our property, irrespective of the calculation of cost proportions.
b) We bear the costs of renovation, maintenance and proper storage as well as the risk of tool breakage.
c) In the case of customer-specific tools, we undertake to use them only for deliveries to the buyer.
d) We undertake to store the tools for the buyer up to 2 years after the last delivery. After 2 years, we will give the buyer the opportunity to comment within 6 weeks regarding the further storage of the tools. The retention period ends if no statement is made within the 6 weeks. Or no new order is placed. If a new order is placed within 6 weeks, the retention period will be extended by 1 year.
e) If the buyer requires retention periods longer than 2 years, we are entitled to charge storage costs.
f) After the expiration of the retention period, we can freely dispose of the tools.

12. Data protection clause
In accordance with the provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz), we are entitled to store personal data about the order/buyer with automatic data processing.

13. Copyright

Documents and drawings provided to the buyer, as well as constructive services and suggestions provided by us, may only be used for the intended purpose. It is forbidden to make these accessible to third parties and the subject of publications without our consent.

14. Liability, compensation for damages

a) The buyer is responsible for appropriate design, in particular with regard to the intended purpose, in compliance with any safety regulations, the choice of the material, the required test procedures, and the correctness and completeness of the technical delivery regulations. Furthermore, the buyer is responsible for ensuring that, on the basis of his information, intellectual property rights or other rights of third parties are not infringed.
b) If a claim is exercised against us by a third party for compensation for damages, the cause of which lies within the area of responsibility of the buyer, the buyer will indemnify us from these claims.
c) Our liability is governed exclusively by the agreements concluded in the preceding paragraphs. Contractual claims for damages or tort claims are excluded unless our legal representatives or executive employees are responsible for intent or gross negligence.

15. Place of performance and place of jurisdiction

a) The place of performance and place of jurisdiction are our company headquarters
b) German law applies exclusively; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 is excluded.

16. Invalidity of individual provisions

Should individual provisions be or become invalid, this will have no effect on the remaining conditions.

(Last updated 01.01.2010)
HEKO Ketten GmbH, Wickede (Ruhr)