General conditions of sale
General Terms and Conditions of Sale of H.C. Carbon GmbH
Status: 01.01.2017
1. Scope
1.1 Our Terms and Conditions of Sale shall apply exclusively to all present and
future contracts and other services.
We do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing.
1.2 Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
1.3 Our Terms and Conditions of Sale shall only apply vis-à-vis entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Offers
2.1 Our offers are subject to change. The documents belonging to our offer, such as drawings, illustrations, technical data, references to standards or statements in advertising material, do not constitute quality specifications or guarantees unless they are expressly designated as such in writing.
2.2 All agreements made between us and the customer for the purpose of executing the contract must be in writing to be effective.
3. prices
3.1 Unless otherwise stated in the order confirmation, our prices are in Euro ex works H.C. Carbon GmbH or Rednitzhembach including customary packaging, in each case plus statutory value added tax.
3.2 We are only obligated to grant discounts or other price reductions if such have been agreed upon in writing when the order was placed.
3.3 We reserve the right to change our prices accordingly if cost reductions or cost increases occur after the conclusion of the contract, in particular due to collective wage agreements, currency fluctuations or changes in the price of materials. We shall provide evidence of these to the customer upon request.
4. terms of payment
4.1 Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The customer must state the individual invoice number and the customer number or order number when making payment.
4.2 The deduction of cash discount requires special written agreement and presupposes the complete settlement of all due liabilities of the customer at the time of the cash discount. 4.3 Checks and bills of exchange shall only be accepted upon special written agreement and only on account of performance against reimbursement of bill and discount charges.
4.4 In the event of default in payment by the customer, we shall be entitled, without prejudice to the assertion of further damages, to charge interest in the amount of the respective bank rates for overdraft facilities, but at least interest in the amount of 8 percentage points above the base interest rate.
4.5 If it becomes apparent after conclusion of the contract that our claim for payment is jeopardized by the customer’s inability to pay, we shall be entitled to the rights under Section 321 of the German Civil Code (BGB) (plea of uncertainty). We shall then also be entitled to call due all claims against the customer from the current business relationship that are not subject to the statute of limitations. In the event of default in payment, we shall also be entitled to demand the return of the delivered goods after expiry of a reasonable grace period and to prohibit the resale or further processing of the delivered goods. The customer may avert all these legal consequences by making payment or by providing security in the amount of our endangered claim for payment. The provisions of the Insolvency Code shall remain unaffected by the above provisions.
4.6 The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. default of acceptance
5.1 If the customer defaults on acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer defaults on acceptance.
5.2 If the customer is in default of acceptance, we shall be entitled to store the goods not accepted by
for the account and at the risk of the customer.
In the case of storage on our own premises, we shall charge 1% of the invoice amount as storage charges for each month or part thereof, starting 30 days after notification of readiness for dispatch; in the case of storage on third-party premises, we shall charge our cost price. Alternatively, in the event of default in acceptance, we shall also be entitled to withdraw from the contract after expiry of a reasonable grace period set by us and/or to claim damages.
5.3 We reserve the right to assert further claims against the customer.
6. delivery period, delay in delivery
6.1 The delivery periods shall commence with the dispatch of our order confirmation to the customer, but not before the provision of the documents, approvals, releases to be procured by the customer or before receipt of an agreed down payment. We reserve the right to plead non-performance of the contract.
6.2 Unless otherwise agreed, the delivery date or deadline
shall be deemed to have been met if the goods have left our factory in
Rednitzhembach or the readiness for shipment has been communicated to the
customer by the time the delivery date or deadline expires.
6.3 The delivery period shall be reasonably extended in the event of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles beyond our control, insofar as such obstacles demonstrably affect the completion or delivery of the goods. This shall also apply if the circumstances occur at our suppliers (e.g. mines).
We shall notify the customer of such circumstances without delay. If the performance of the contract becomes unreasonable for one of the parties, it may withdraw from the contract to that extent.
6.4 We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or
grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
6.5 We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
6.6 Further legal claims and rights of the customer remain reserved.
7. execution of delivery, call-off contracts
7.1 Unless otherwise agreed, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer when the goods are handed over to a forwarding agent or carrier, but no later than when the goods leave the factory in Nuremberg. Otherwise, all deliveries by us are covered by transport insurance.
7.2 We shall be entitled to make partial deliveries to a reasonable extent.
7.3 In the case of call-off contracts, i.e. contracts for a fixed quantity of goods, the delivery or acceptance of which is to be effected within a certain period of time at the request of the customer, if necessary in partial quantities, we shall be entitled to manufacture or have manufactured the entire order quantity in one go. Any change requests cannot be taken into account after the order has been placed unless this has been expressly agreed. In the case of call-off contracts, we shall already be entitled to the rights arising from default in acceptance if the customer breaches the obligation to take delivery with regard to individual partial quantities. In the case of call-off of partial quantities, each delivery shall be deemed to be a transaction in its own right with regard to the customer’s obligation to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB) as well as with regard to the price adjustment pursuant to Clause 3.3.
8. property rights and copyrights
8.1 We reserve property rights and copyrights to illustrations, samples, calculations, drawings and similar documents, also in electronic form. The customer must obtain our express written consent before passing them on to third parties.
8.2 If we have delivered the goods in accordance with drawings,
models, samples or other documents provided by the customer, the customer shall guarantee that the property rights of third parties are not infringed. If third parties prohibit us from manufacturing and delivering such goods, in particular by invoking industrial property rights, we shall be entitled, without being obliged to examine the legal situation, to cease any further activity in this respect and, if the customer is at fault, to claim damages. In addition, the customer undertakes to indemnify us immediately against all claims of third parties in connection therewith.
9. retention of title
9.1 We retain title to the goods until receipt of all payments under the delivery contract. In the event that the customer acts in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the goods. The taking back of the goods by us shall constitute a withdrawal from the contract. After taking back the goods, we shall be entitled to dispose of them; the proceeds of such disposal shall be credited against the customer’s liabilities less reasonable costs of disposal.
9.2 The customer shall be obliged to handle the goods with care; in particular, he shall be obliged to insure them adequately at his own expense against damage by fire, water and theft at replacement value.
9.3 In the event of seizures or other interventions by third parties, the customer shall notify us in writing without delay so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
9.4 The customer shall be entitled to resell the goods in the ordinary course of business
; however, he hereby assigns to us all claims in the amount of the invoice amount of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the goods have been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
9.5 The processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title.
9.6 If the goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis.
The customer shall hold the sole ownership or co-ownership thus created in safe custody for us. The customer shall also assign to us the claims to secure our claims against him which accrue against a third party as a result of the combination of the goods with real property.
9.7 We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent on us.
10. Liability for defects
10.1 The customer’s claims for defects shall be subject to the condition that the customer has duly complied with its obligations to examine the goods and to give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
10.2 If the goods are defective, the customer shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of new goods free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the goods have been taken to a place other than the place of performance. If the subsequent performance fails, the customer shall be entitled, at its option, to demand rescission or reduction.
10.3 We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
10.4 We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
10.5 Insofar as the customer is entitled to claim compensation for damage instead of performance, our liability shall also be limited to compensation for the foreseeable, typically occurring damage.
10.6 Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
10.7 Unless otherwise stipulated above, liability shall be excluded.
10.8 The limitation period for claims for defects shall be 12 months, calculated from the transfer of risk.
11. joint and several liability
11.1 Any further liability for damages than provided for in clause 10. shall be excluded irrespective of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property pursuant to Section 823 of the German Civil Code (BGB).
11.2 The limitation according to clause 11.1 shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damages.
11.3 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
12. data processing and storage
The customer agrees that we process and store data of the goods and payment transactions with him as well as personal data of the customer electronically on data carriers.
13. Final Provisions
13.1 The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
13.2 The place of performance for all obligations arising from the contract shall be our plant in Rednitzhembach. The exclusive place of jurisdiction for all disputes arising from the contract shall be Schwabach. 13.3 In cases of doubt, the German version of these Terms and Conditions of Sale shall prevail.
13.4 Should individual provisions of the contract with the Customer, including these Terms and Conditions of Sale, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision. The same shall apply in the event of loopholes in the contract including these Terms and Conditions of Sale.
