I. Scope of validity
1. These general terms and conditions of purchase shall exclusively apply to all present and future commercial orders of Hemscheidt Fahrwerktechnik GmbH & Co. KG (hereinafter called “Hemscheidt”) and their processing. The applicability of the contractor’s terms and conditions is expressly refuted. Other terms and conditions shall neither be accepted by silence nor by acceptance of goods/ performance.
2. If agreeing on special terms and conditions, these general terms and conditions shall be considered as secondary and supplementary.
3. Alterations or additions to these general terms and conditions of purchase and to orders based on these terms and conditions must be made in writing. This applies equally to a waiver of the written form requirement.
II. Offers / Orders
1. The preparation and submission of offers by the contractor is free of charge for Hemscheidt and is not binding until written order of Hemscheidt.
2. The order confirmation shall be made within 10 working days. After expiry of this period without any objection of the contractor, the order shall be considered as accepted. Any deviation from the order of Hemscheidt shall require Hemscheidt’s prior written consent.
3. Hemscheidt may change technical details up to four weeks prior to the due delivery date. If first or type samples are made available to Hemscheidt, then the series production may only begin following Hemscheidt’s express and written release.
1. As far as not agreed on separately, overall or individual prices are fixed prices and are valid until the end of order settlement. Subsequent increases for whatever reason are excluded.
2. The prices are stated as carriage-paid with delivery to the reception point stated by Hemscheidt, including freight, packaging and ancillary costs (DAP acc. to INCOTERMS 2010). If non-paid delivery shall be separately agreed on, then Hemscheidt shall only assume the most favorable freight costs, unless Hemscheidt has stipulated a special type of shipment.
3. If, as an exception, pricing schedules have been agreed on in a foreign currency, then the agreed price shall be based on the conversion rate of the EURO to the foreign currency in question quoted in Germany on the day of order confirmation. If this rate shall change prior to the payment due date, either side shall be allowed to demand corresponding price adjustments.
IV. Payment / Reserve of proprietary rights
1. Invoices shall be sent to Hemscheidt not until after complete fulfillment of the delivery obligations.
2. The invoice shall be settled either within 14 days with 3 percent cash discount or within 30 days without discount. The periods begin to run on receipt of the invoice but not, however, before receipt of the goods, or acceptance in the case of performances, and if documentation or similar documents form part of the performance scope, then not before their contractual submission to Hemscheidt. In case of acceptance of a precipitate (partial) delivery, nevertheless the payment periods shall begin running at the negotiated date at the earliest.
3. If down payments are agreed that are not yet balanced by any corresponding countervalue, Hemscheidt is entitled to demand the provision of an absolute bank guaranty in the same amount concurrently with performance of the down payments. The contractor shall bear the costs of this guaranty which will be returned - as the case may be - after complete fulfillment or acceptance of the performance.
4. Payments are made by check or bank/post bank remittance at Hemscheidt’s choice. The payment is made in due time if the check has been sent by post on the due date or the remittance has been instructed to the bank/post bank on the due date.
5. The contractor is not permitted to set off amounts against accounts receivable or to exercise any lien unless the claim with which the contractor is setting off or exercising a lien is uncontested or has been established by declaratory judgement. The contractor may furthermore only assign any receivables from the entire business relationship to third parties with Hemscheidt’s prior express written approval.
6. Any possible reservation of proprietary rights by the contractor will be acknowledged on the condition that the title of the goods/ performances passes to Hemscheidt on payment (simple reserve of proprietary rights). The extended reserve of title and all forms of its extension shall be expressly excluded.
V. Shipment / Delivery
1. Unless stipulated otherwise, the shipment shall be made to the address stated in the order.
2. Partial deliveries, as well as passing Hemscheidt’s orders to third parties (sub suppliers, subcontractors), shall only be permissible after prior written approval of Hemscheidt. Extra costs shall be borne by the contractor in every case.
3. The contractor shall bear the hazard of accidental perishing and accidental worsening (especially transport hazard) according to the agreed INCOTERMS 2010 clause DAP.
4. All goods shall be properly packed and labeled. The shipment shall be carried out with customary or with the necessary diligence according to the handling of the goods / performances. Each delivery shall contain a delivery note with the Hemscheidt order number, a packing slip, item number, and so on.
VI. Delivery dates / periods / Force Majeure
1. Agreed delivery dates and periods are binding. Hemscheidt shall be immediately notified if delivery delays are impending; this shall not, however, release the contractor from claims for damage compensation to which Hemscheidt may be entitled.
2. In case of non-fulfillment, Hemscheidt shall be entitled to assert damage compensation of 5 percent of the total gross order value and 0.5 percent of the total gross order value per started calendar week, but not more than 5 percent maximum. The evidence of a further reaching damage compensation claim to be satisfied by the contractor shall not be excluded by above provision. The contractor is equally entitled to provide evidence that no damage or a lesser damage has been incurred than the one generally asserted.
3. Force majeure and other events for which Hemscheidt shall not be answerable and which make it impossible or significantly more difficult for Hemscheidt to accept or use the goods / performances, shall release Hemscheidt from its duties of acceptance and payment for the duration of these hindrances.
VII. Long Term Supplier Declaration
1. On request of Hemscheidt the contractor issues a Long Term Supplier Declaration according to VO (EG) 1207/2001 concerning the characteristics of origin of the sold goods, and - at Hemscheidt’s demand - he shall make the investigation of this evidence of origin possible by the customs administration and shall issue the necessary information thereto and provide any possibly required confirmations.
2. The contractor shall compensate the damage which occurs because the origin stated by him is inaccurate and/or is not acknowledged by the responsible authority as a result of erroneous certification or for lack of subsequent investigation possibility. This liability does not, however, arise if the contractor proves that hereby he shall not be at any fault whatsoever.
3. The contractor shall provide all documents and data which shall be necessary according to the respective customs provisions or any other relevant provisions.
VII. Warranty / liability / insurance
1. If the goods/ performances are defective or if the contractor violates other duties from the obligatory relationship, Hemscheidt shall be entitled to the statutory rights and entitlements without restriction.
The contractor warrants for all goods/ performances worldwide that they shall comply with the demands made, that they shall be defect free, and that they shall be qualified for all intended purposes by Hemscheidt.
If works safety is endangered and/or to avoid unusually high damages to Hemscheidt or to third parties, Hemscheidt shall be entitled to remove defects and remedy damages or undertake covering purchases at the expense of the contractor without prior consultation. The contractor shall bear all costs in conjunction with the delivery of defected goods/ performances.
2. The statutory warranty period shall be 30 months beginning with further processing / commissioning of the goods/ performances, however at the longest 36 months after delivery. If a defect occurs within the first 12 months, it shall be assumed that the defect had already existed at the time of passing of risk.
3. Notwithstanding Hemscheidt’s claims from section 1 above, the contractor shall herewith assign to Hemscheidt all claims to which he is entitled to against his suppliers/subcontractors due to a defect arising at Hemscheidt or due to a deviation from a guaranteed characteristic discovered by Hemscheidt. The contractor shall hand over to Hemscheidt all documents necessary to assert such claims. If Hemscheidt will not assert these assigned rights, then the contractor may demand their reassignment.
4. The contractor shall indemnify Hemscheidt against all claims brought by third parties – especially such due to product liability – that are the result of the defective nature of his partial performances having become part of Hemscheidt’s product (especially delivery of basic materials and partial products) or that result from other breaches of duty from the obligatory relationship for which he is answerable.
5. For the duration of the business relation, the contractor shall provide a sufficient insurance coverage in terms of a business and product liability insurance, and coverage for recall costs at the amount of at least 2 Mio. € for each insurance case / 4 Mio. € per insurance year in case of special demand. Upon request, the contractor shall provide an insurance certificate.
IX. Manufacturing means (especially tools) and raw materials
1. Tools, models, drawings and other documents of all kinds (manufacturing means) provided by Hemscheidt or which were manufactured for Hemscheidt shall be used exclusively to undertake Hemscheidt’s orders and may not be wholly or partly made accessible to third parties without Hemscheidt’s prior written approval. They shall be sent back to Hemscheidt immediately at demand, or at the latest two years following their last implementation. Any lien shall be excluded.
2. Manufacturing means and raw materials provided by Hemscheidt shall remain property of Hemscheidt. The manufacture, reworking or processing of such manufacturing means undertaken by the contractor in the fulfillment of Hemscheidt’s order shall be done for Hemscheidt as manufacturer with the consequence that Hemscheidt shall acquire the title thereto. Manufacturing means shall be stored separately, maintained regularly, insured against loss and damage, labeled permanently and well readable as the property of Hemscheidt.
X. Quality / control
1. In completion of the goods/ performances, the contractor shall comply with the state-of-the-art in science and technique and shall implant and maintain a quality safety system according to ISO 9001 or a similar system and certified by an accredited authority. Furthermore, the contractor shall observe all relevant quality standards and rules, quality assurance measures provided by Hemscheidt, and all statutory law.
2. Prior to the confirmation of an order, the contractor shall analyze the specifications, drawings, and so on provided by Hemscheidt and check their completeness and correctness. The contractor shall point out any friction to Hemscheidt.
3. The contractor shall inspect the goods/ performances extensively prior to goods issue. Immediately after receipt of goods/ performances, Hemscheidt will check the delivery for identity, amount, and obvious transport damages. Discovered defects and damages will be reported within a period of 14 days after receipt of goods/ performances by Hemscheidt and - in case of a third-party-deal - within 14 days after receipt of goods/ performances at Hemscheidt’s customer. Insofar, the contractor shall waive the right to objection due to late notice of defects. However, the payment of the goods/ performances shall mean no acceptance of the goods/ performances; a checking shall mean no quitclaim of any of Hemscheidt’s rights.
4. As far as goods/ performances show any defects concerning the design and quality or will be delivered without the required documents, e.g. in the absence of delivery notes, first sample reports as well as in the absence of product labeling and quality control certificates, Hemscheidt shall have the right to charge a lump sum in the amount of EURO 100, - in every case of a justified defect.
5. Hemscheidt shall have the right to audit the contractor’s premises at any time after prior announcement; the contractor shall assure the same right to audit with his sub suppliers.
XI. Development / industrial property rights / licenses
1. The contractor warrants that the use of the goods/ performances shall not infringe any domestic and/ or foreign patents, utility patents, copyrights, or other third party rights.
2. The contractor shall indemnify Hemscheidt from all claims, damages, lawsuits and receivables from actual and alleged breaches of rights named in section 1.
3. As far as the contractor shall have any industrial property rights to the goods/ performances, the contractor shall grant Hemscheidt the timely and locally unlimited, irrevocable and free of charge right to the purpose of use of Hemscheidt to use, maintain, provide services, and procure spare parts, and so on regarding the goods / performances.
4. If development workings shall be part of the order, they shall be covered by a single payment or they shall be compensated by the piece / unit price and that the title hereto shall pass to Hemscheidt. The contractor shall grant Hemscheidt the timely and locally unlimited, irrevocable and free of charge license with the right to grant sub-licenses regarding all of the contractor’s industrial property rights which shall come to existence due to the development workings and which Hemscheidt will reasonably need for its own or a third party’s use.
5. In case of development workings, an approval by Hemscheidt shall not release the contractor of his product, especially construction responsibility.
The contractor shall keep in strict secret all information deriving from the business relationship. The contractor shall use the information provided by Hemscheidt exclusively for the purpose of each order – not for his own purposes unless Hemscheidt shall have given its prior written approval. Information which the contractor shall have legally received by third parties in a non secret way as well as freely accessible information shall not be part of the duty to secrecy.
XIII. Hemscheidt Code of Conduct
With each and every order the Hemscheidt Code of Conduct (see at www.hemscheidt.de) shall form integral part of the contract between Hemscheidt and the contractor.
The contractor shall comply with the principles of the Hemscheidt Code of Conduct and shall pass on these principles accordingly in his own supply chain.
XIV. Security in Supply the Chain
1. If the contractor is a certified Authorized Economic Operator (AEO) the contractor shall prove it by submitting a copy of the official certification to Hemscheidt.
2. Should the contractor not (yet) be a certified Authorized Economic Operator, the contractor shall have the obligation to ensure continuous compliance with the requirements specified in the Security Declaration (retrievable at www.HUBNER-germany.com) in the contractor’s company and immediately send such Security Declaration to Hemscheidt with a legally binding signature. If the contractor is unable to meet, wholly or partly, the requirements stated in the Security Declaration, the contractor shall immediately inform Hemscheidt about this in writing.
3. If the certifications/declarations required in accordance with the preceding items 1 and 2 were not yet transferred to Hemscheidt it shall be transferred within two weeks of receipt of a purchase order from Hemscheidt. Should the contractor fail to do so Hemscheidt shall be entitled to rescind from the order within 2 further weeks.
4. Should the contractor, at any point in time, lose the certification of an Authorized Economic Operator or is not, or no longer, be able to meet the requirements warranted in the Security Declaration, the contractor shall immediately inform Hemscheidt in writing. The loss of the status as Authorized Economic Operator, an incorrect Security Declaration or the subsequent non-compliance with the requirements specified in the Security Declaration shall constitute cause for termination without notice by Hemscheidt. Moreover, the contractor shall bear all expenses and damages incurred by Hemscheidt as a result of the loss of the status as Authorized Economic Operator, the incorrectness of the Security Declaration or subsequent non-compliance with the requirements stated therein.
1. If the contractor shall apply for bankruptcy proceedings or if bankruptcy proceedings shall be opened against him or shall be declined in the absence of legal estate, and the contractor shall not be able to comply with his contractual duties due to these reasons, the contractor shall immediately inform Hemscheidt hereof. For the occurrence of each of these cases, the contractor grants Hemscheidt the right to copy the goods/ performances or to have them copied by a third party.
2. In the event of one of the cases stated in section 1, the contractor shall have to return all manufacturing means upon first call – preferably prior to automatic stay.
3. In the event of one of the cases stated in section 1, Hemscheidt shall have the right to terminate the business relation with immediate effect and under the exclusion of any claims of compensation.
XVI. Concluding provisions
1. Place of fulfillment for all goods/ performances is the point of reception specified by Hemscheidt, or Haan-Gruiten if such a place is not prescribed.
2. All changes and amendments of technical and commercial specifications in the business relation shall require written form.
3. Place of jurisdiction is the registered office of Hemscheidt’s headquarters (Haan-Gruiten) and additionally, as the case may be, the domicile of a branch dependency of Hemscheidt registered in the commercial register which undertook the contract conclusion. However, Hemscheidt shall be entitled to bring suit against the contractor before the court of law competent for his registered office.
4. All legal relations between Hemscheidt and the contractor shall be subject to the laws of the Federal Republic of Germany to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).
5. If a part of the contract or of these general conditions and terms of purchase shall be invalid, then the validity of the contract or of these conditions and terms shall not otherwise be affected thereby. In place of the invalid part, a new valid part shall become effective which economically equals the invalid one preferably to a large extent. The same shall apply in case of a gap.
6. In cases of doubt regarding the wording or translation, the original German language version of these General Terms and Conditions shall be valid.
GENERAL TERMS AND CONDITIONS OF SALES OF HEMSCHEIDT FAHRWERKTECHNIK GMBH & CO. KG, HAAN-GRUITEN
I. Scope of Validity / Offers
1. These general terms and conditions of sales shall be valid exclusively for all present and future contracts and other commercial performances. The customer’s terms and conditions are expressly refuted. Different terms and conditions shall neither be accepted by silence nor by acceptance of goods / performances.
2. Alterations or additions to these general terms and conditions of sales and to orders based on these terms and conditions must be made in writing. This applies equally to a waiver of the written form requirement.
3. Hemscheidt’s offers are subject to change. Hemscheidt’s written order confirmation is decisive. Any documents submitted with the offer such as catalogs, prospectuses, illustrations, drawings and technical data contain only approximate statements and descriptions and do constitute neither any specifications of properties nor any guaranties as far as not explicitly stipulated otherwise.
4. Deviations of the goods / performances from offers, specimens, samples and prior deliveries are permitted pursuant to the respectively valid DIN standards or other usually applicable technical standards. Dimensions shall be determined according to the DIN standards. DIN standards shall be – as far as applicable – the basis of each contract.
1. Unless agreed otherwise, the prices are stated in EURO, generally EX WORKS Haan-Gruiten in accordance with INCOTERMS 2010, and each plus VAT respectively.
2. The customer shall bear unforeseen extra expenses arising from carrying out the delivery and for which no price surcharges are agreed, unless Hemscheidt is responsible for such circumstances.
3. If forecasted quantities (total amount or yearly quantity) on which the price calculation was based shall not be reached, Hemscheidt shall be allowed to charge to the customer’s account the not called delivery amounts at the end of the year or each delivery period considering saved expenses unless Hemscheidt is responsible for not reaching the forecasted quantities.
4. If, as an exception, prices are agreed in a foreign currency, then the agreed price shall be based on the conversion rate of the EURO to the foreign currency in question quoted in Germany on the day on which the order is confirmed. If this rate changes prior to the payment due date, then either side may demand corresponding price adjustments.
1. Payment must be made cash or via bank transfer within 30 days net, as from invoice date respectively. The invoice amount shall be available for Hemscheidt at the due date latest.
2. Counterclaims that Hemscheidt contests or which have not been established by declaratory judgment shall not entitle the customer to withholding or to setting off any amounts.
3. If circumstances become known to Hemscheidt subsequent to the conclusion of contract that indicate a substantial deterioration in the customer’s financial situation and that put our payment claims at risk, especially in case of the circumstances mentioned in section V/9, a reduction or cancellation of the customer’s limit by the commercial credit insurer in the scope of Hemscheidt’s commercial credit insurance, Hemscheidt shall be entitled to hold the customer as due to pay for all payables arising of the business relation, to ask for cash payment / bails, and to interdict to resale and processing of the Goods, or to ask for prepayment / other bails for outstanding deliveries/performances. If the customer shall default with payments Hemscheidt shall be entitled to repossess delivered goods at the customer’s expenses after setting an appropriate period of grace, to withdraw from the contract, and to ask for reimbursement of expenses and damages for delay amounting at least up to 9 percentage points above the prime lending rate.
IV. Delivery periods / Force Majeure
1. The statement of a delivery period is not binding. A binding delivery period is only agreed if Hemscheidt confirms it as such in writing.
2. Delivery periods, and especially binding delivery periods, begin with the date of Hemscheidt’s order confirmation but not, however, before receipt of the order and full technical clarification of the order and before an agreed on advance payment shall be credited. If subsequent alterations are requested by the customer, then delivery dates and delivery periods shall be prolonged to an appropriate extent as far as Hemscheidt shall have accepted these alterations if necessary with adaptation of the conditions.
3. Delivery dates and delivery periods shall be prolonged to an appropriate extent in the case of force majeure events as measures within the context of labor disputes, especially strikes and lockouts, and in the occurrence of unforeseeable hindrances beyond Hemscheidt’s will, insofar as such hindrances exercise significant influence on the manufacture or delivery of the goods. This applies equally if the circumstances occur at sub-suppliers of Hemscheidt. Hemscheidt shall immediately notify the customer of such circumstances. If implementation of the contract becomes unreasonable for one of the parties, then the party in question may withdraw thus far from the contract.
4. The delivery periods shall be complied with if the goods are ready for dispatch and Hemscheidt shall have given due notice hereof.
V. Retention of title
1. All delivered goods remain Hemscheidt’s property (reserved goods) until all obligations from the business relationship are fulfilled, for whatever legal reason, including future or conditional claims.
2. Re-working and processing of the reserved goods shall be undertaken for Hemscheidt as manufacturer in the meaning of section 950 German Civil Code (BGB) without obligating Hemscheidt. The processed goods are considered as reserved goods in the meaning of section V/1. If the customer processes, combines and mixes the reserved goods with other goods, Hemscheidt shall be entitled to co-ownership of the new goods in the ratio of the invoice value of the reserved goods to the invoice value of the new goods. If Hemscheidt’s proprietary rights extinguish through combining or mixing, then the customer herewith assigns to Hemscheidt the proprietary rights to the new stocks or goods to which he is entitled in the scope of the invoice value of the reserved goods and safekeeps said rights for Hemscheidt free of charge. The co-ownership rights arising hereby shall be considered to be reserved goods in the meaning of section V/1.
3. The customer shall be allowed to sell the reserved goods in the course of usual business to customary conditions of business for as long as he is not delayed, and on condition that the claims from the reselling pursuant to sections V/4 to V/6 shall pass over to Hemscheidt. The customer shall not be entitled to dispose of the reserved goods in any other way.
4. The claims of the customer from resale of the reserved goods are herewith assigned to Hemscheidt. They serve as bail to the same extent as the reserved goods. If the customer sells the reserved goods together with goods not sold by Hemscheidt, then the assignment of the claim from the reselling is only valid for the amount of the reselling value of the respectively sold reserved goods. If goods of which Hemscheidt has co-ownership rights pursuant to section V/2 are resold, then the assignment of the claim shall be valid for the amount of these co-ownership shares.
5. The customer is entitled to collect receivable claims from the reselling until Hemscheidt’s revocation which may be exercised at any time. At Hemscheidt’s demand, the customer is obligated to immediately inform his customer of the assignment to Hemscheidt and to give Hemscheidt all the information and documents necessary for collection.
6. The customer is obliged to immediately notify Hemscheidt of a distraint or other damnification through third parties.
7. If the value of existing bails exceeds the value of the secured receivable claims by more than 10 percent in total, Hemscheidt shall be release bails of Hemscheidt’s choice at the request of the buyer.
8. The customer is obligated to issue all declarations, submit applications and recourse to other measures necessary and appropriate to secure Hemscheidt’s proprietary rights. Particularly in the case of orders from abroad, the foreign customer is obligated to cooperate in every respect and comply with the respective formal requirements in order to realize the reservation of proprietary rights or a corresponding collateralization (e.g. ordering a right of lien).
9. In case of cessation of payments, petition in or opening of bankruptcy proceeding, or out of court proceedings as well as in case of challenge of such proceedings due to lack of mass, the right to resale, disposal and mounting of the reserved goods, and the collection authorization of the respective claims shall cease. Hemscheidt shall be entitled to retrieve the goods. If the customer has mixed the goods Hemscheidt shall be entitled to selection by means of invoice documents in accordance with the customer. If the customer shall not cooperate, Hemscheidt shall be entitled to selection on its own with the help of an expert.
VI. Dispatch of deliveries / Transfer of hazard / Package / Intra-Community Supply
1. The hazard in all transactions shall transfer to the customer on handing over the goods to a forwarder or haulage contractor, but at the latest, however, on leaving Hemscheidt’s warehouse or – in the case of third party deals – the dispatching works.
2. Hemscheidt shall decide the shipment route and means, as well as forwarder or haulage contractor, unless agreed otherwise in writing.
3. The goods will be delivered packed. Hemscheidt shall invoice the packaging at cost as charged to Hemscheidt; shuttle packaging must be returned to Hemscheidt in a usable condition within an appropriate time and carriage-paid to Hemscheidt’s works.
4. Hemscheidt shall be entitled to carry out partial deliveries to a reasonable extent. Excess and short deliveries of manufactured goods deviating by up to 5 percent from the agreed quantity are permissible.
5. In the case of call orders, Hemscheidt shall be entitled to manufacture or have manufactured the order quantity for 6 months in a single closed batch. Any alterations can no longer be considered following issue of the order, unless expressly agreed otherwise. Unless firm agreements were concluded, call dates and quantities can only be complied with within the framework of Hemscheidt’s delivering or manufacturing possibilities. If the goods shall not be called in accordance with the order Hemscheidt shall be entitled to bill the goods after a reasonable grace period.
6. In case of deliveries into other EU member states (“Intra-Community Supply”) the customer is obliged to support Hemscheidt with any reasonable assistance in order to prove the Intra-Community Supply. In particular, Hemscheidt can request a signed and dated confirmation of the Intra-Community Supply containing at least: name and address of consignee, quantity and commercial description of the goods and place and date of receipt of goods. If the customer does not comply with the aforesaid cooperation obligation, the customer shall be liable for any damages resulting thereof, especially shall compensate any value added tax (VAT) imposed on Hemscheidt.
VII. Warranty and liability / Statute of Limitation
1. The customer shall be answerable for the correctness and completeness of any specifications and specified dimensions given to Hemscheidt in order to carry out the order, and of other statements or requirements to fulfill Hemscheidt’s performance. Respective errors on the part of the customer cannot constitute any defaults in Hemscheidt’s performances.
2. The customer shall immediately inspect the delivery and report recognizable defects in writing immediately, at the latest within 10 days after performance. Defects that were not recognizable during the inspection must be reported in writing immediately, i.e. at the latest within 10 days following discovery. The afore mentioned periods will only apply insofar as the Convention on the Contract for the International Carriage of Goods by Road (CMR) does not indicate any shorter terms.
3. Hemscheidt will remedy justifiably asserted defects in its performance by subsequent fulfillment as repair or delivery of a new good. If the subsequent fulfillment should fail twice within an appropriate period of grace set for this purpose, then the customer may withdraw from the contract or appropriately reduce the price/remuneration.
4. Warranty claims shall be statute barred 12 months following the transfer of hazard. This does not apply insofar as the law determines longer statutory periods of limitation as mandatory. In case of subsequent fulfillment, the statutory periods of limitation shall not start anew.
5. Any recourse entitlements of the customer against Hemscheidt pursuant to section 478 German Civil Code (BGB) are given only insofar as no agreements going above and beyond the statutory warranty entitlements were concluded in the delivery chain between Hemscheidt and the customer.
6. Any warranty shall be given under the reservation that the goods are properly maintained and handled. No warranty shall be assumed for damages arising especially from the following reasons: improper use, erroneous assembly respectively operating start by the customer or third parties, natural wear and tear, erroneous and careless handling, unsuitable auxiliary working materials or replacement materials. All warranty rights shall be void if the customer or third parties shall carry out alteration or maintenance work improperly without Hemscheidt’s prior written approval.
7. The customer shall not be entitled to rely on a default as long as he shall not have submitted the rejected good or a sample hereof to Hemscheidt. Expenses associated with the subsequent fulfillment shall be borne by Hemscheidt solely as far as they are adequate to purchase price.
8. Damage compensation claims of the customer, for whatever legal reason, especially due to breach of the duties from the obligatory relationship and from tortuous act, are excluded. This shall not apply to willful misconduct or gross negligence, or to claims due to injury to life, body or health, to liability pursuant to the product liability, to a guarantee that Hemscheidt may have accepted, to the damage caused by a culpable breach of essential contract duties, or in other cases of mandatory statutory liability. Essential contract duties are the respective contractual main duties, as well as any side duties of the contract that in case of a breach of duty can endanger the fulfillment of the contract purpose. The liability for the breach of essential contract duties is, however, restricted to compensation for the foreseeable contract-typical damages.
9. Other claims than the one mentioned in section VII/4 shall be statute barred 6 months following the customer’s taking notice respectively the negligently not taking notice if the customer shall not prove a notice taken at a later point of time.
1. Hemscheidt reserves the proprietary rights and copyrights to all cost estimates, designs, drawings and other documents. They may only be made accessible to third parties with Hemscheidt’s explicit written consent. Drawings and other documents pertaining to offers must be returned on demand.
2. If Hemscheidt has delivered goods according to drawings, models, specimens or other documents previously submitted by the customer, then the customer assumes the guarantee that third party industrial property rights shall not be infringed. If third parties under reference to industrial property rights prohibit especially the manufacturing and delivering of respected goods, then Hemscheidt shall be entitled – without being obligated to scrutinize the legal situation – to thus far cease any further activity and to demand compensation for damage if the customer is at fault. The customer moreover obligates himself to indemnify Hemscheidt immediately against all third party entitlements in connection herewith.
IX. Trial components, molds, tools
1. If the customer has to provide parts for undertaking the order, then they must be delivered carriage-free and at own risk to the place of production in the agreed quantity, or in an appropriate excess quantity for any wastage, in due time, free of charge and without defects. If this does not happen the customer shall bear the costs and other consequences thereby caused. Hemscheidt shall be liable for machines and tools applied in manufacture for the diligence exercised in own matters. The customer shall bear the costs related to maintenance, care and replacement as far as nothing different has been agreed between the Parties.
2. The manufacture of trial parts, including the costs for molds and tools, shall be borne by the customer.
3. Unless expressly agreed otherwise, Hemscheidt shall be and remain the owner of trial parts, molds and tools manufactured by Hemscheidt or on its instructions. Insofar as necessary for fulfillment of the agreed output quantity, Hemscheidt shall provide cost-free replacement of molds and tools that have become unusable, unless the customer is responsible for uselessness. Hemscheidt shall use these parts solely for purposes of the customer. This restriction of use shall be cancelled if, despite reminder and setting of a period of grace, the customer fails to perform his payment and acceptance obligations towards Hemscheidt. Hemscheidt shall safekeep these parts for the duration of two years as from the time of their last implementation for the customer; at the request of the customer the parts shall be insured at the expenses of the customer.
4. If the customer should become the owner of molds and tools pursuant to express agreement, then the ownership thereof passes to the customer only after complete settlement of the order for which these molds and tools were manufactured, including complete payment of the full remuneration. If the customer does not thereafter assert his entitlement to have these items surrendered to him, then Hemscheidt shall, unless explicitly agreed otherwise, not be obligated to safekeep these parts free of charge for longer than two years. The safekeeping shall be carried out at the risk of the buyer.
The customer shall keep all information arising from or besides the business relation in strict confidentiality. The customer shall use the submitted information solely for the purpose of the order, however not for its own purposes unless Hemscheidt shall have given its prior written consent. Information that the customer has legally received by third parties in a non-confidential way as well as free accessible information shall not be comprised.
XI. Final Provisions
1. The place of fulfillment for all deliveries / performances shall be Hemscheidt’s works unless agreed otherwise.
2. The place of jurisdiction shall be the main place of Hemscheidt’s business (Haan-Gruiten). Hemscheidt may also bring suit against the customer before the court of law competent for the customer’s place of business.
3. All legal relationships between Hemscheidt and the customer shall be subject to the laws of the Federal Republic of Germany under exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).
4. Should a part of the contract or of these general terms and conditions of sales be void, then the validity of the contract or of these terms and conditions of sales shall not be affected thereby for the rest. An effective provision which shall comply economically with the intend of Hemscheidt at the most possible extent shall replace the void part. This same shall apply in case of a gap.
5. In cases of doubt regarding the wording or translation, the original German language version of these General Terms and Conditions of Sales shall be valid.