General Terms and Conditions of Horpovel® GmbH
1. Scope of application
All offers, sales, deliveries and services of Horpovel® GmbH, Carolinenglückstr. 25 a, 44793 Bochum (hereinafter referred to as "Horpovel®"), shall be made exclusively on the basis of these General Terms and Conditions. Conflicting or deviating terms and conditions of a customer/purchaser
(hereinafter uniformly referred to as "Purchaser") shall not be accepted, irrespective of the point in time at which they become known to Horpovel®. This shall also apply if Horpovel®, being aware of conflicting or deviating conditions of a Purchaser, carries out the supplies to the Purchaser without reservation. Deviations from these General Conditions shall only be effective if Horpovel® confirms them in writing.
These General Conditions shall also apply to all future transactions with the same Purchaser without any special further agreement.
2. Offer and conclusion of contract
The offers of Horpovel® are always without engagement, unless expressly stated otherwise. Cost estimates are non-binding. Unless otherwise agreed, initial offers shall be made free of charge. Horpovel® reserves the right to charge an appropriate fee for further offers if a contract for supplies and/or services is not concluded.
Orders in text form and by telephone shall be binding on the Purchaser for four weeks from the date of receipt by Horpovel®.
A contract for deliveries and/or services shall only be concluded upon written confirmation by Horpovel®, in which case text form shall be sufficient.
Amendments, supplements or collateral agreements shall also require written confirmation by Horpovel®, at least in text form.
The prices of Horpovel® shall be in Euro and, in the absence of agreements to the contrary, "ex works".
The statutory value added tax is not included in the prices; it is shown separately in the invoice at the statutory rate on the day of invoicing.
Horpovel® shall be bound by the prices quoted in the offer for 30 calendar days from the date of the offer, unless otherwise stated in the offer.
Additional services, both its own and those of third parties, which are necessary for the execution of the order or which are carried out at the request of the Purchaser, may be invoiced additionally by Horpovel®, even if they are not expressly mentioned in the offer.
Horpovel® is entitled to reasonably increase the prices quoted in the offers, if the purchase prices to be paid by Horpovel® and/or the material or labour costs to be borne by Horpovel® for processing and possible transport have increased. The prerequisite for such a price increase is that the delivery time is at least 4 weeks calculated from the time of the conclusion of the contract as well as that such a delivery time is either contractually agreed or occurs due to circumstances for which Horpovel® is not responsible.
If the increase of the price is more than 10 %, the Purchaser is entitled to withdraw from the contract within 14 days calculated from the notification of the price increase. The declaration of withdrawal shall be made to Horpovel® in text form.
Unless otherwise agreed, Horpovel® invoices shall be due for payment 14 days after receipt of the invoice with 2% discount or 30 days after receipt of the invoice without deduction.
Horpovel® has the right to deliver only against down payment, advance payment or cash on delivery.
For payments by letter of credit, the regulations issued by the ICC on "Uniform Customs and Practice for Documentary Credits" as amended from time to time shall apply.
The Purchaser shall not be entitled to set-off, retention or reduction, unless its counterclaims are either not contested by Horpovel® or have been finally adjudicated. The same shall apply in case of assertion of warranty claims.
If the Purchaser is in default of payment, Horpovel® is entitled to charge default interest in the amount of the statutory German provisions applicable at the time of default of payment. If Horpovel® proves a high damage caused by default, this can be claimed. The Purchaser shall, however, be entitled to prove that a lesser damage has arisen as a consequence of the delay in payment.
In addition, in case of default of payment, Horpovel® shall be entitled, after having granted a further reasonable period of grace, to demand immediate payment of the outstanding debts, to stop work and to refuse further deliveries or services.
If Horpovel® becomes aware of circumstances which call into question the creditworthiness of the Purchaser, Horpovel® may declare all claims, including deferred claims, due immediately. In addition, Horpovel® may in this case demand a security deposit.
Dates for deliveries and services are in principle only approximate, unless Horpovel® has expressly confirmed them to the Purchaser in writing as binding. In the case of a bindingly confirmed delivery date, the delivery period shall commence with the receipt of the order confirmation by the Purchaser, but not before clarification of all technical and commercial details and presentation of documents, approvals or releases to be obtained by the Purchaser. If a bank guarantee or a letter of credit has been agreed or if Horpovel® requires a down payment or an advance payment, the delivery period shall commence with the receipt of the money or the relevant documents.
Any changes in the design of the delivery item requested by the Purchaser within the delivery period shall extend the delivery period accordingly.
Compliance with the delivery period is subject to correct and timely delivery to us.
Unless otherwise agreed, each delivery shall be "ex works".
The delivery period shall be deemed to have been complied with if the delivery item has left the works of Horpovel® by the expiry of the delivery period or if notice has been given that the delivery item is ready for dispatch.
Horpovel® shall be entitled to make partial deliveries and render partial services at any time.
Horpovel® shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for Horpovel®, such as in particular strike, lockout, official orders or an unforeseeable shortage of raw materials and energy, even if they occur at Horpovel®'s suppliers, even in the case of bindingly agreed dates or periods and even if Horpovel® is in default. Horpovel® shall be entitled to postpone the delivery or performance for the duration of the delay in delivery or performance plus a reasonable start-up period or to withdraw from the contract in whole or in part on account of the part not yet performed. Horpovel® shall inform the Purchaser as far as possible about the beginning, the end and the expected duration of the aforementioned circumstances.
In case of default by Horpovel®, the Purchaser shall grant Horpovel® a reasonable period of grace for performance of the contract.
If Horpovel® is in default and if the Purchaser suffers damage as a result thereof, the Purchaser shall be entitled to claim a lump-sum compensation for the delay. It shall amount to 0.5 % for each full week of delay. However, the total compensation shall not exceed 5 % of the value of that part of the entire delivery which cannot be used in due time or in accordance with the contract as a result of the delay.
If the Purchaser grants Horpovel®, which is in default, a reasonable period of time for performance - taking into account the statutory exceptions - and if the period of time is not observed, the Purchaser shall be entitled to rescind the contract within the scope of the statutory provisions.
The lump-sum compensation for delay shall cover all claims due to delay in delivery. Any further claims may only be asserted in accordance with clause 9 of these terms and conditions.
6. Transfer of risk, transport, default of acceptance
The place of performance shall be the registered office of Horpovel®.
The risk shall pass to the Purchaser as soon as the delivery item has left the works of Horpovel®, even if partial deliveries are made or Horpovel® has taken over other services, e.g. shipping costs or delivery.
If the shipment is delayed or does not take place due to circumstances for which Horpovel® is not responsible, the risk shall pass to the Purchaser on the day of the notification of readiness for shipment.
Unless otherwise agreed, the transport of the delivery items shall be at the expense and risk of the Purchaser.
At the request of the Purchaser and at its expense Horpovel® shall insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks.
If the Purchaser is in default of acceptance or infringes other obligations to co-operate, Horpovel® is entitled to claim compensation for the damage it has suffered, including any additional expenses, in particular the costs incurred by the delayed acceptance of the delivery.
If trade terms such as FOB, CFR, CIF, etc. are used, they shall be interpreted in accordance with the respective valid Incoterms of the ICC.
7. Retention of title and other securities
Horpovel® reserves the title to the delivery item until all claims of Horpovel® against the Purchaser arising from the business relationship, including claims arising in the future, from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of Horpovel® have been included in a current account and the balance has been struck and accepted. In the event of a breach of contract by the Purchaser, in particular in the case of default in payment, Horpovel® shall be entitled, after having sent a reminder, to take back the delivery item and at the same time declare its withdrawal from the contract and the Purchaser shall be obliged to surrender the delivery item.
The Purchaser shall be entitled to dispose of the delivery items in the ordinary course of business, provided and as long as the conditions for securing the claims of Horpovel® against the Purchaser set forth in clauses 7.3, 7.4 and 7.5 are fulfilled. A breach of the obligation contained in the preceding sentence shall entitle Horpovel® to terminate immediately the entire business relationship with the Purchaser.
It is hereby agreed between Horpovel® and the Purchaser that upon conclusion of the contract for a supply all claims of the Purchaser arising from the future resale of the supply to a third party or from any other legal ground (insurance, tort, etc.) shall pass to Horpovel® as security for all claims of Horpovel® arising from the business relation with the Purchaser. However, the Purchaser shall remain entitled to collect the assigned claims until Horpovel® demands the disclosure of the assignment. The Purchaser shall not be entitled to reassign the claims already assigned to Horpovel®. The Purchaser shall be obliged to transfer to Horpovel® the title or any other right to the objects taken in payment within the scope of resale, irrespective of their nature, at the moment when the Purchaser acquires the title or the other right. The Purchaser shall keep the aforementioned items for Horpovel®, treat them with care and insure them adequately.
If the securities referred to in clauses 7.1, 7.2 and 7.3 are not recognised in the legal system of the country in which the delivery items are located or if they are not fully enforceable, the Purchaser shall inform Horpovel® thereof without delay and offer equivalent securities.
The processing or transformation of the goods subject to retention of title shall always be carried out by the Purchaser on behalf of Horpovel®. If the goods subject to retention of title are processed together with other goods not belonging to Horpovel®, Horpovel® shall acquire co-ownership of the new goods in proportion of the value of the goods subject to retention of title to the other processed goods at the time of processing.
If the delivery items or goods of Horpovel® are combined or inseparably mixed with other movable objects to form a single object and if the other object is to be regarded as the main object, the Purchaser shall transfer to Horpovel® proportionate co-ownership to the extent that the main object belongs to it.
The Purchaser shall keep the property or co-property for Horpovel®. In all other respects, the same shall apply to the item resulting from the processing or transformation as to the goods subject to retention of title.
If the value of the securities granted in accordance with clauses 7.1 to 7.5 exceeds the claims of Horpovel® arising from the business relationship with the Purchaser by more than 20 %, Horpovel® shall, at the request of the Purchaser, release securities in excess thereof at its discretion.
The Purchaser shall insure the goods delivered under retention of title against theft, breakage, fire, water and other risks usually to be insured against. Horpovel® may demand evidence of the conclusion of a suitable insurance policy and, if necessary, insure the aforementioned risks itself at the Purchaser's expense.
In the event of seizure, confiscation or other access by third parties to objects or claims in which Horpovel® has security interests, the Purchaser shall notify Horpovel® without delay and support Horpovel® in asserting its rights. The costs of any judicial or extra-judicial interventions shall be borne by the Purchaser to the extent that their reimbursement is not obtained from the third party.
An application for the opening of insolvency proceedings against the Purchaser's assets shall entitle Horpovel® to rescind the contract with immediate effect and to demand the immediate return of the delivery item.
Clauses 7.1 sentence 3 and 7.9 shall apply mutatis mutandis to the objects of whatever kind taken in payment by the Purchaser, if any, in accordance with clause 7.3.
Horpovel warrants the goods to be of average kind and quality.
The Purchaser shall accept technical changes and changes in the shape, colour and/or weight of the goods while maintaining the same quality and prices.
Within the scope of the warranty Horpovel® shall be liable within a period of 12 months for the goods or services being free from defects which render the goods unsuitable for normal use and operation or which considerably reduce the suitability of the goods. Insofar as defects are due to improper use or improper storage by the customer or a third party or similar circumstances lying in the sphere of the customer are responsible for the defect, the customer shall have no warranty claims.
A special quality of the goods sold by Horpovel® or their suitability for a special use shall not be deemed to be agreed, unless Horpovel® and the Purchaser have expressly agreed otherwise in writing, at least in text form.
Information on the usability or shelf life of the goods is always non-binding and only applies on condition that the specifications for the storage of the goods listed in the product description and/or in the safety data sheet are observed.
The above warranty period shall commence on the date of delivery or performance. The goods and their packaging must be inspected immediately after delivery in accordance with § 377 of the German Commercial Code (HGB). Complaints about visible defects must be made and justified at least in text form within 7 days of receipt of the goods. In case of omitted or delayed notification of defects, warranty claims against Horpovel® are excluded.
Notices of defects and complaints of any kind must be made immediately in text form. Defects shall be presented and proven to Horpovel® irrespective of how long after the purchase or delivery such defect occurs.
Claims due to defects of the goods shall be limited to subsequent performance, namely, at the option of Horpovel®, to the right of rectification or replacement delivery. Horpovel® shall be granted a reasonable period of time for such subsequent performance. If Horpovel® is refused this opportunity, Horpovel® shall be released in this respect from the rectification of defects and from further claims for defects. The Purchaser shall have the right to rescind the contract or to reduce the purchase price only if a repeated repair or replacement has failed.
Only the Purchaser shall be entitled to warranty claims against Horpovel® and such claims shall not be assignable.
Horpovel® can refuse the fulfilment of warranty obligations/claims as long as the Purchaser has not fulfilled its obligations according to the contract.
The provisions contained in this clause 8 finally regulate the warranty for goods delivered or services rendered by Horpovel®. Any further claims of the Purchaser, in particular for damage not caused to the goods themselves, shall be governed exclusively by clause 9.
To the extent that any liability of Horpovel® is excluded or limited according to the preceding paragraphs, this shall also apply to the personal liability of the employees and other staff of Horpovel® as well as its representatives or vicarious agents.
Horpovel® shall only be liable for damages, in particular for damages which have not occurred to the delivery item itself - on whatever legal grounds - in the following cases
- in case of intent,
- in the case of gross negligence of the organs (managing directors) or executive employees,
- in case of culpable injury to life, body, health,
- in case of defects which Horpovel® has fraudulently concealed or guaranteed to be absent,
- in the case of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.
In case of culpable breach of essential contractual obligations Horpovel® shall also be liable in case of gross negligence of non-executive employees and slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract.
Any further liability for damages, in particular pecuniary loss, is excluded. Liability for all consequential damages, in particular loss of profit, is excluded.
The aforesaid limitations of liability shall apply according to reason and amount also in case of possible claims for damages of the Purchaser against legal representatives of Horpovel®, its employees or its vicarious agents.
The above limitations of liability shall also apply, according to reason and amount, to the breach of ancillary contractual obligations, in particular to the breach of duties of explanation and consultation before and after the conclusion of the contract.
Unless otherwise agreed, the liability of Horpovel® shall be limited to the extent of its business liability insurance, cover amount 10 million Euro lump sum for personal injury and property damage as well as for product asset damage.
All claims of the purchaser - on whatever legal grounds - shall become statute-barred after 12 months. In the case of intentional or fraudulent conduct and in the case of claims under the Product Liability Act, the statutory periods shall apply.
11. Data Protection
Horpovel® stores data within the scope of the business relationship with the Purchaser in accordance with the Federal Data Protection Act (BDSG).
12. Applicable law, place of jurisdiction, severability clause
The contractual relationship between Horpovel® and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for all disputes arising from the contractual relationship between Horpovel® and the Purchaser shall be the court having jurisdiction for the registered office of Horpovel®. However, Horpovel® shall be entitled, at its option, to sue the Purchaser also at its general place of jurisdiction.
Only the German text of these General Terms and Conditions shall be legally binding for the contractual relationship.
Should one or more provisions or parts of a provision of these conditions of sale and delivery be or become invalid for any reason, the validity of the remaining provisions shall not be affected thereby. The Purchaser and Horpovel® undertake to replace the ineffective provisions or partial provisions by provisions which best correspond to the purpose of the contract. The same shall apply in the case of unintentional omissions.