General Terms and Conditions for Deliveries and Services of Hero-Glas Veredelungs GmbH, 26906 Dersum
Status: December 2015
§ 1 General
1.1. Our general terms and conditions of business apply to this contract and for all future contracts, deliveries and other services, including consulting services as part of the business relationship, even if a reference in a particular case should not be explicit in future. Separate terms and conditions of the contracting partner are excluded. These are specifically excluded as part of the contract in all cases.
1.2. All agreements made between us and the contracting party with respect to the contract and its execution shall be set down in writing in this contract. This also applies to additions, changes, deletions and other arrangements. Other agreements and verbal commitments are not met. Explanations of individual employees are only binding if they are confirmed by us in writing.
§ 2 Quotations and Acceptance
2.1. Our quotations are non-binding; in terms of the law they provide only the invitation to submit an offer of contract. The contract is only valid if we accept the offer of the contracting partner (contract/order) in writing, or otherwise through the execution of the contract or the order.
2.2. The contracting party is obliged to immediately check our acceptance/order confirmation. Any deviations from the order must be reported immediately. If a claim is not made, then the contract is subject to the contents of the acceptance/order confirmation issued by us. If there is no formal declaration of acceptance/order confirmation, then the above shall apply in respect of the delivery notes/part payment and final invoices.
2.3. Requests of the contracting party can only be considered as long as execution (manufacturing, cutting or machining) has not yet begun. It is not possible to give consideration thereafter. If however consideration shall occur, this will entail additional costs.
§ 3 Delivery and Performance
3.1. Unless an explicit binding promise exists on our part, a delivery period is only valid as an approximation. Any agreed delivery period starts on the date of clarification of all technical matters and other details for the order. It shall be extended by the period in which the contracting party is in default, within an ongoing business relationship and other contracts.
3.2. Our deliveries are made ex-stock or ex-factory. For delivery with our own vehicles or vehicles from the supply works, the transfer of goods is considered complete, at the latest, when the goods are made available to the receiver, at the point of delivery, on a surfaced roadway on the vehicle. Unloading is the sole responsibility of the contracting party. Necessary unloading facilities or manpower must be provided by the contracting party. Should the contracting party, through the contractual agreement, also request complete or partial unloading, transport or installation of the product, and we agree to this request, then the services are provided at the risk and liability of the contracting party. Insofar as assistants are used, they are working as agents of the contractor. However, we are entitled to separately charge the expenses thereby incurred by us.
3.3. The risk is transferred to the contracting party on handover of the goods to the carrier, irrespective of whether he has been commissioned by the contractor, manufacturer or by us. This also applies to partial deliveries and deliveries free of charge. The unopposed acceptance of the shipment by the carrier will serve as evidence for the proper condition of the packaging and proper loading, unless the contracting party provides proof that the packaging, in the delivery of the shipment to the carrier, contained defects or that loading was not properly carried out.
3.4. If the shipment is delayed at the request or fault of the contracting party, the goods are stored at the expense and risk of the contracting party. In this case, the notification that the goods are ready is the same as the dispatch. With storage, the invoice for the goods is due immediately.
3.5. In case of a delivery or service delay, the period of grace set by us is 4 weeks.
3.6. Insofar as our supply factories apply standard industry tolerances with respect to the goods, in particular with respect to slight variations in colour and structure, these also apply to the present contract.
3.7. Claims for damages of any kind are limited to the liability for intent and gross negligence. This limitation of liability does not occur if by exception it concerns the fulfilment of obligations which give the contract its character (cardinal obligations). In this case, we shall also be liable for slight negligence.
§ 4 Shipping and Packaging
4.1. The means of shipment and route are at our discretion. Packaging is performed exclusively under consideration of transportation, production and environmental aspects. The greatest dimension of the unit always determines the package length.
4.2. Reusable packaging and glass transport racks remain our property. The contracting party is obliged to return them immediately. If the contracting party defaults on this obligation of return, this shall incur usage fees. This is especially true for returnable racks. In case of damage or loss of parts, the contractual partner is obliged to refund the cost of repairs or the replacement of the lost parts. The contracting party has the opportunity to demonstrate that damage, to the extent alleged, has not occurred or only to a lesser extent.
§ 4a Special conditions for the delivery of goods with returnable racks
The merchandise is delivered with reusable packaging/glass transport racks. The glass transport racks are provided to the buyer only on loan. This is done in accordance with our specific conditions for deliveries with returnable racks that are part of each contract. The conditions can be found on the Internet at www.hero-glas.de/Service/AGB.
§ 5 Prices and Payment
5.1. Agreed prices are quoted ex works, excluding packaging, freight and other shipping costs as well as insurance and VAT. If an insurance contract has been concluded at the request of the contracting party, then we act only as an agent for the contracting party.
5.2. If a certain compensation is agreed, we are entitled to a reasonable adjustment if the costs vary after conclusion, e.g., due to wages and material prices. If the price increase is more than 10%, then the customer has a right of withdrawal. This right of withdrawal must be exercised within 2 weeks from receipt of notification of the increase in compensation.
5.3. Insofar as no contractual agreement has otherwise been made, invoices are due for payment immediately, without any deduction. Bills of exchange and checks are only accepted on account. In addition, settlement by bills of exchange requires a separate prior agreement with us. Here, discount charges, exchange costs and other costs are borne by the contracting party.
5.4. We are entitled to demand advance payments. It is also permitted for us to provide partial services, insofar as the acceptance thereof is reasonable for the contracting party. In this case, the contracting party is obliged to immediately pay the part performance rendered.
5.5. Offsetting is permissible only with undisputed or legally established counter claims. The same applies to the right of retention.
5.6. Any agreed discounts are invalid if other overdue invoices are still open with us on receipt of the discountable invoice amount. A discount cannot be claimed, in any case, with settlement by bill of exchange. Without written authorisation of the Executive Board, our employees are not permitted to receive payments.
5.7. Should the contracting party fail to make due payments (payments on account), after expiry of a period of grace set by us, which need not be longer than 2 weeks, then we are entitled to claim damages for non-performance and/or withdraw from the contract.
5.8. We are entitled to charge interest at 8% per annum above the base rate; whereby the assertion of further damages or a higher interest on another legal basis is not excluded.
5.9. All our claims are due immediately upon protests of bills of the customer, on non-payment and on submission of an application to open insolvency proceedings on the assets of the customer. In addition, if a significant deterioration of financial circumstances of the contracting party is known to us, we are entitled to refuse performance until payment or collateral is provided by the customer.
§ 6 Warranty
6.1. The contracting party is required to immediately inspect all deliveries, even partial deliveries. All defects including shortfalls or wrong deliveries must be notified in writing, at the latest within 2 weeks, and in every case before processing. Other obligations in accordance with § 377, 378 HGB (German Commercial Code) remain unaffected. Any warranty is void if installation occurs with knowledge of the complaint, unless the contracting party has previously expressly reserved such claims, or we have fraudulently concealed the defect on delivery, or previously assumed a guarantee for the quality of the item.
6.2. Deviations in dimensions, contents, thickness, weight and colour tones as well as for optical and physical radiation variations through manufacturing are permissible within the standard industry tolerances. The same applies to industry tolerances on cutting and fabricating. Production and material related phenomena such as interference formations, double glazing effects, multiple reflections, reflection distortions and anisotropies are technically unavoidable. Public functional data comply with the current standards and the measurement conditions specified therein.
6.3. In warranty cases we are entitled to assign our warranty claims against our supplier to the customer and therefore free ourselves from an obligation of warranty. However, our obligation of warranty is revived if the claims against our supplier cannot be enforced, whereby recourse to legal assistance is not required.
6.4. Warranty claims are fulfilled by us by supplementary performance (replacement or rework) under the exclusion of further claims. If the defect cannot be eliminated within a reasonable time and a replacement delivery is also denied, the contracting party may claim reduction of payment or withdraw from the contract. With claims for damages, § 3.7 is valid as far as applicable.
6.5. Glass made available from the contracting party can be processed by us upon prior agreement. We cannot undertake to give a guarantee for any breakage in manufacturing or transport. In every case this is borne by the contractor, except for wilful misconduct or gross negligence.
§ 7 Withdrawal
We are entitled to rescind the contract in case of good cause. A good cause exists in the following circumstances:
- We intend to complete a trade credit insurance, on behalf of the contracting party, to the amount of the contract. If this is rejected on the part of the insurer, we are entitled to make deliveries or services subject to a corresponding security or advance payment. Any resulting delay in delivery or service does not give cause for a claim of damages. If the customer is in default with the fulfilment of contract and also does not make payment, after we have set a reasonable grace period, or the customer finally refuses fulfilment, we are entitled to rescind the contract.
- In case of malfunctions due to force majeure or other obstacles not caused by us such as strikes, riots or lockouts.
§ 8 Retention of Title
8.1. We reserve title to the goods delivered by us until the contracting party has paid all claims from the business relationship, including claims arising in the future - also from simultaneous or subsequent contracts - or has paid a possible current account balance.
8.2. In the course of regular business operations, the contracting party may combine or mix the reserved goods with goods that do not belong to us. Once the reserved goods are mixed by the contracting party with other objects, the ownership of the object we are entitled to is in the proportion of the invoice value of the reserved goods to the invoice value of the other goods or objects or the processing value. If our ownership expires by combining, mixing or processing, the contracting party transfers to us, already at the time of concluding the contract, the ownership of the new item he is entitled to, in proportion to the invoiced value of the reserved goods, and shall hold them free of charge. Thereafter, resulting property rights are considered reserved goods according to the above provisions.
8.4. The other claims to compensation our contracting party is entitled to, in respect of his customer, which he has for the resale of the goods still in our property or co-ownership, shall now be ceded to us by the contracting party. We accept this assignment.
8.5. The contracting party is entitled to revocably collect claims from the resale, unless we revoke the authorisation for collection. For our part, we are entitled to disclose our reserved and other property, as well as the assignment of future claims, insofar as we have a legitimate interest therein, especially if the contracting party does not make payments according to the contract or if it sells off the goods cheaply.
8.6. The contracting party is entitled to demand the assignment of ownership or reassignment of its compensation claims in whole or in part, provided that the value of the goods in our ownership and the assigned claims exceed 110% of our outstanding claims. The selection of the objects and claims assigned to us is at our discretion.
8.7. The contracting party must notify us immediately of any possible access by third parties, e.g. seizures, by handing over the necessary documents.
§ 9 Miscellaneous
9.1. Should individual clauses of our terms and conditions be invalid, the validity of the remainder is unaffected. The invalid clause shall be replaced by a valid provision that comes closest to the economic purpose of the invalid clause.
9.2. The contract shall be governed exclusively by the laws of the Federal Republic of Germany, as it applies to domestic transactions. Excluded in particular are the applicability of the uniform laws on the international sale of goods and on the conclusion of international purchase contracts for movables.
9.3. Our company headquarters in Dersum is the place of performance and exclusive jurisdiction for deliveries and services as well as all disputes resulting thereof - insofar as the contracting party is a registered trader or legal entity under public law or public special assets. We are however also entitled to sue the contractual partner at his place of jurisdiction. This also applies in all other cases, unless the contractor after conclusion of the contract relocates his domicile or habitual residence from the Federal Republic of Germany or if his domicile or habitual residence at the time of action is not known.
Technical Features </ strong>Laminated glass and laminated safety glassWe supply the glass with a film thickness of at least 0.38 mm. However, we reserve the right to use a thicker film for bonding the glass panes, in the event that the use of the film in the desired thickness is not possible for production reasons. The contracting party hereby agrees, with the acceptance of the offer, that in this case a thicker film can be used.