1.1 These General Terms and Conditions for Orders, Deliveries and Services (GTC) apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons who acquire the goods or services for commercial or professional use and to persons under public law and special funds under public law.
1.2 The following terms and conditions (GTC) shall apply exclusively to the business relationship with our customers, including for information and advice. If our GTC have been introduced into the transaction with the customer, they shall also apply to all further business relationships between the customer and us, unless expressly agreed otherwise in writing.
Deviating terms and conditions of the buyer and/or ordering party - hereinafter referred to as "customer(s)" - shall only apply if and insofar as we expressly recognise them in writing. In particular, our silence with regard to such deviating terms and conditions shall not be deemed as recognition or consent, not even for future contracts.
Our General Terms and Conditions shall also apply in place of any terms and conditions of purchase of the customer if, according to these, acceptance of the order is intended as unconditional acceptance of the terms and conditions of purchase, or if we deliver or perform after the customer has indicated the validity of his General Terms and Conditions of Purchase, unless we have expressly waived the validity of our General Terms and Conditions. The exclusion of the customer's General Terms and Conditions of Business shall also apply if the General Terms and Conditions of Business do not contain a separate provision on individual points of regulation By accepting our order confirmation, the customer expressly recognises that it waives its legal objection derived from the Terms and Conditions of Purchase.
1.3 If framework agreements or other contracts have been concluded with our customers, these shall take precedence. They shall be supplemented by these GTC unless more specific provisions have been made therein.
1.4 Insofar as claims for damages are mentioned in the following, this also refers to claims for reimbursement of expenses within the meaning of § 284 BGB.
2.1 Information and explanations regarding our products and services by us or our employees and vicarious agents are provided solely on the basis of our previous experience. They do not represent any properties or guarantees with regard to our products or services. The values stated here are to be regarded as average values of our products and/or our services.
In the absence of any express agreement to the contrary, we shall not be obliged to ensure that our products and/or services are suitable for the purpose pursued by the customer.
2.2 All information about our products and services, in particular that contained in our offers and printed matter and on the Internet and the illustrations, drawings, dimensional, property or performance characteristics contained therein as well as other information, in particular technical information or information about ingredients, are to be regarded as approximate average values in the absence of designation as a "binding property" of our delivery items. This applies accordingly to statements made by our employees, unless otherwise agreed. Even data of our products not provided with tolerances, as contained in our Internet presentation or our catalogues and/or brochures, as well as in offers, order confirmations or other pre-contractual declarations, are subject to customary and/or industry-standard production-related deviations and changes, in particular due to production-related circumstances and materials used.
2.3 Insofar as we provide instructions for use/application, these are drafted with the care customary in the industry, but do not release our customers from the obligation to carefully examine the products with regard to their suitability for the purpose desired by them. Unless otherwise agreed, the customer shall in any case remain obliged to check the usability of our products and/or services for the intended purpose. The same applies to information on import, customs and certification regulations.
2.4 We only expressly assume an obligation to provide advice regarding our products and their use by virtue of a separate written consultancy agreement.
2.5 Any reference to standards, similar regulations as well as technical information, descriptions and illustrations of the delivery item in offers and brochures or on the Internet and in our advertising, as well as to analyses or descriptions of physical properties provided, shall only constitute a specification of the properties of our products if we have expressly declared the quality as a "property of the product"; otherwise these are non-binding, general descriptions of performance. Unless otherwise agreed, this also applies to statements made by our employees.
2.6 A guarantee in the legal sense (assumption of no-fault liability) shall only be deemed to have been assumed by us if we have designated a property and/or a performance outcome as "legally guaranteed" in writing.
2.7 We do not assume any liability for the usability and/or registrability and/or marketability of our products or services for the intended purpose of the customer other than the mandatory statutory liability, unless we have agreed otherwise in writing with the customer. The provisions of Clause 11 shall remain unaffected.
2.8 The customer is obliged to provide us with all information and data required for the provision of services in good time and in full prior to the execution of the order.
2.9 Due to the respective production process, the following tolerances generally apply, unless we expressly state otherwise in our offer or in our order confirmation:
For diving articles:
Wall thickness +/- 0.25 mm
In the case of dipped articles - especially very short dip moulded parts - clearly visible deviations may occur within these tolerance fields (differences in length and/or wall thickness for identical articles). These deviations do not constitute a defect.
- For coatings: Coating length +/- 2.0 mm, wall thickness +/- 0.25 mm
- For injection moulded articles: according to the article drawing of the order
2.10 The internal quality inspection at HAMCO is carried out in accordance with DIN ISO 2859. Unless otherwise agreed, the following guide values are used within this standard:
a) For immersion articles: according to sampling plan AQL 1.5 normal test
b) For coatings: by arrangement
c) For injection moulded articles: according to sampling plan AQL 0.4 normal test
2.11 Due to the production process, dripping may occur with dipped items. These do not constitute a defect. The release samples provided on request are decisive for this.
2.12 Dripping may also occur in coatings due to the production process. These do not constitute a defect. The reference sample provided in each case is decisive for this
3.1 The properties of samples or specimens shall only become part of the contract if this has been expressly agreed with us in writing. The customer is not authorised to utilise or pass on samples.
If we sell on the basis of a sample, deviations from this are permissible in the delivered goods and do not justify complaints and claims against us if they are customary in the trade and any agreed specifications are met by the delivered goods, unless otherwise agreed.
3.2 We reserve all property rights and copyrights to samples, illustrations, drawings, data, cost estimates and other documents relating to our products and services disclosed or provided to the customer. The customer undertakes not to make the samples, data and/or documents listed in the above sentence accessible to third parties unless we give our express written consent. He must return these to us on request if an order based on them is not placed with us within 4 weeks of their being made available to the customer.
The provisions of sentences 1 and 2 shall apply accordingly to the customer's documents, drawings or data; however, we may make these accessible to third parties to whom we legitimately transfer contractual deliveries and/or services with the customer or to whom we utilise as vicarious agents or suppliers.
4.1 Our offers are non-binding unless they are expressly labelled as binding or expressly contain binding commitments or the binding nature has otherwise been expressly agreed. They are invitations to place orders.
The customer is bound to his order as a contract application for 14 calendar days - in the case of electronic orders 5 working days (in each case at our registered office) - after receipt of the order by us, unless the customer must regularly expect a later acceptance by us (§ 147 BGB). This also applies to repeat orders placed by the customer.
4.2 A contract is only concluded - even in ongoing business transactions - when we confirm the customer's order in writing or in text form by means of an order confirmation. The order confirmation shall only apply on the condition that any outstanding payments of the customer are settled and that a credit check of the customer carried out by us remains without negative information, unless expressly agreed otherwise with us by the customer.
In the event of delivery or performance within the customer's offer-related commitment period, our order confirmation can be replaced by our delivery, whereby the dispatch of the delivery is decisive.
4.3 Even in the case of call-off orders or customer-related delays in acceptance, we are entitled to procure the material for the entire order and to produce the entire order quantity immediately or to cover the entire order quantity. Any change requests by the customer can therefore no longer be taken into account after the order has been placed, unless this has been expressly agreed in writing between us and the customer.
In the case of call-off orders without an agreement on duration, production batch sizes and/or acceptance dates, we can demand a binding determination of this from the customer no later than 3 months after order confirmation. If the customer does not fulfil this demand within 2 weeks, we are entitled to withdraw from the unfulfilled part of the contract after setting the customer a two-week grace period and to claim damages instead of performance.
4.4 The customer must notify us in writing in good time before conclusion of the contract of any special requirements for our products and/or services that are not expressly offered to him. However, such information shall not extend our contractual obligations and liability.
In the absence of any express agreement to the contrary, we are only obliged to deliver the products ordered from us by the customer as goods that can be marketed and authorised in the Federal Republic of Germany.
4.5 We are only obliged to perform from our own stock of goods (stock debt).
4.6 The assumption of a procurement risk within the meaning of § 276 BGB does not lie solely in our obligation to deliver an item determined only by its type.
4.7 We shall only assume a procurement risk within the meaning of Section 276 BGB by virtue of a separate written agreement using the phrase "we assume the procurement risk...".
4.8 If the acceptance of the products or their dispatch or the acceptance of our service is delayed for a reason for which the customer is responsible, we shall be entitled, after setting and expiry of a 14-day grace period, at our discretion, to demand immediate payment of remuneration or to withdraw from the contract or to refuse fulfilment and demand compensation for damages instead of the entire service. The deadline must be set in writing or in text form. We do not have to refer again to the rights arising from this clause.
In the event of the above-mentioned claim for damages, the damages to be paid shall amount to a lump sum of 20% of the net delivery price for purchase contracts. Both parties reserve the right to prove a different amount of damages or that no damages were incurred. A reversal of the burden of proof is not associated with the above provisions.
4.9 If dispatch is delayed at the customer's request or for reasons for which the customer is responsible, we shall be entitled to store the goods at the customer's risk for loss and deterioration of the goods, beginning with the expiry of the reasonable period set in writing or text form in the notification of readiness for dispatch, and to invoice the resulting costs at 0.5% of the net invoice amount of the stored goods for each week or part thereof. The stored goods shall only be insured at the special request of the customer. The assertion of further rights remains unaffected. The customer reserves the right to prove that no or significantly lower costs have been incurred.
In addition, we shall be entitled to dispose of the contractual goods elsewhere after the aforementioned expiry of the period in accordance with Clause 4.8 sentence 1 and to supply the customer again within a reasonable period of time.
4.10 In the event of a delayed delivery order or call-off by the customer, we shall be entitled to postpone delivery by the same period as the customer's delay plus a disposition period of 4 working days at the location of our registered office.
4.11 Unless otherwise expressly agreed in writing or text form or if we are subject to a deviating, mandatory statutory regulation, we shall only provide user information for our products and a product label in German or, at our discretion, in English.
The customer is responsible for providing us with all necessary information regarding the ordered goods within a reasonable period of time and free of charge so that the order can be executed in accordance with the contract.
4.12 We reserve the right to change the specification of the goods to the extent that legal requirements make this necessary, provided that this change does not result in a deterioration in quality and usability for the usual purpose and provided that the suitability for a specific purpose has been agreed for this purpose.
4.13 We are authorised to make excess or short deliveries of up to 10% of the agreed delivery quantity.
We are also entitled to deliver products with customary deviations in quality, dimensions, weight, colour and equipment. Such goods shall be deemed to be in conformity with the contract.
5.1 Binding delivery dates and deadlines must be expressly agreed in writing. In the case of non-binding or approximate (approx., about, etc.) delivery dates and deadlines, we shall endeavour to comply with these to the best of our ability.
5.2 Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, but not before all economic, technical and logistical details of the execution of the order have been clarified between the customer and us and all other requirements to be fulfilled by the customer have been met in full, in particular agreed advance payments or securities and necessary cooperation services have been provided in full by the customer. The same applies to delivery and/or service deadlines. If the customer has requested changes after placing the order, a new reasonable delivery/performance period shall commence upon our confirmation of the change.
5.3 Deliveries before expiry of the delivery period are permissible. The day of delivery shall be deemed to be the day of notification of readiness for dispatch in the case of debt to be collected, otherwise the day of dispatch of the products, in the case of debt to be delivered the day of delivery at the agreed place of delivery.
5.4 Unless otherwise agreed in writing, the customer's interest in our performance shall only lapse if we fail to deliver essential parts or deliver them late.
5.5 If we are in default of delivery, the customer must first set us a reasonable grace period of at least - unless unreasonable - 14 days for performance. If this expires without result, claims for damages for breach of duty - for whatever reason - shall only exist in accordance with the provision in Clause 11.
5.6 We shall not be in default as long as the customer is in default with the fulfilment of obligations towards us, including those arising from other contracts.
5.7 Unless otherwise agreed, we shall only take back packaging on the basis of and to the extent required by law.
6.1 If, for reasons for which we are not responsible, we do not receive deliveries or services from our subcontractors for the provision of our contractual delivery or service despite proper and sufficient coverage prior to conclusion of the contract with the customer in accordance with the quantity and quality from our delivery or service agreement with the customer (congruent coverage), or if events of force majeure of not insignificant duration (i.e. with a duration of more than 14 calendar days) occur, we shall inform our customer immediately in writing or in text form. In this case, we shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part due to the unfulfilled part of the contract, provided that we have fulfilled our above obligation to inform and have not assumed the procurement risk in accordance with § 276 BGB or a delivery guarantee. Force majeure shall include strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks or obstacles through no fault of our own, operational hindrances through no fault of our own - e.g. due to fire, water and machine damage - and all other hindrances which, from an objective point of view, have not been culpably caused by us.
6.2 If a delivery and/or performance date or a delivery and/or performance period has been bindingly agreed and the agreed date or the agreed period is exceeded due to events in accordance with Clause 6.1, the customer shall be entitled to withdraw from the part of the contract that has not yet been fulfilled after a reasonable grace period has expired without result. Further claims of the customer, in particular claims for damages, are excluded in this case.
6.3 The above provision pursuant to Clause 6.2 shall apply accordingly if, for the reasons stated in Clause 6.1, it is objectively unreasonable for the customer to continue to adhere to the contract even without a contractually agreed fixed delivery date.
7.1 Unless otherwise agreed, we shall assume an obligation to dispatch the goods.
In the case of sale to destination, we are also entitled to dispatch the goods to be delivered from a place other than the place of fulfilment.
7.2 Unless otherwise agreed, we reserve the right to choose the transport route and the means of transport in the case of agreed despatch. However, we shall endeavour to take into account the customer's wishes with regard to the mode and route of dispatch, without the customer having any right to this. Any additional costs incurred as a result - even if carriage paid delivery has been agreed - shall be borne by the customer, as shall transport and insurance costs.
If dispatch is delayed at the customer's request or through the customer's fault compared to the agreed time, we shall store the goods at the customer's expense and risk. In this case, notification of readiness for dispatch shall be equivalent to dispatch.
7.3 The risk of accidental loss or accidental deterioration shall pass to the customer when the products to be delivered are handed over to the customer in the case of an agreed obligation to collect, or to the forwarding agent, carrier or other companies designated to carry out the shipment in the case of an agreed obligation to dispatch, but at the latest when the products leave our factory or warehouse, unless an obligation to deliver has been agreed. The above shall also apply if an agreed partial delivery is made. In the case of an obligation to be performed at the place of delivery, the risk shall pass to the customer upon delivery to the agreed place.
7.4 If the shipment is delayed because we exercise our right of retention as a result of the customer's default in payment in whole or in part, or for any other reason for which the customer is responsible, the risk shall pass to the customer at the latest from the date of dispatch of the notification of readiness for dispatch and/or performance to the customer.
8.1 The customer must notify us in writing or text form of any recognisable material defects in our delivery items immediately, but no later than 12 calendar days after collection in the case of delivery ex works or storage location, otherwise after delivery, and of hidden material defects immediately after discovery, but no later than within the warranty limitation period in accordance with Section 8.7. Failure to give notice of defects in due time or form shall exclude any claim by the customer for breach of duty due to material defects. This shall not apply in the event of intentional, grossly negligent or fraudulent behaviour on our part, in the event of injury to life, limb or health or the assumption of a guarantee of freedom from defects, or a procurement risk in accordance with § 276 BGB or other mandatory statutory liability circumstances. The special statutory provisions for final delivery of the goods to a consumer (supplier recourse, §§ 478, 479 BGB) remain unaffected.
8.2 Any material defects of our delivery items recognisable upon delivery must also be reported to the delivering transport company and the written or textual recording of the defects must be arranged by the latter. Failure to initiate the notification of defects to the delivering transport company in due time shall exclude any claim by the customer for breach of duty due to material defects. This shall not apply in the event of fraudulent, wilful or grossly negligent action on our part, in the event of injury to life, limb or health, or assumption of a procurement risk in accordance with § 276 BGB, a guarantee of freedom from defects, or liability in accordance with a mandatory statutory basis for liability and in the event of a recourse claim in the supply chain (supplier recourse - §§ 478, 479 BGB).
Insofar as quantity and weight defects were already recognisable upon delivery in accordance with the above inspection obligations, the customer must complain about these defects to the delivering transport company upon receipt of our delivery items and have the complaint certified by the latter. Clause 8.2 sentence 2 shall apply accordingly.
8.3 Upon commencement of processing, treatment, combination or mixing with other items, the delivered products shall be deemed to be in conformity with the contract.
8.4 Other breaches of duty on our part must be warned by the customer immediately in writing or in text form before the assertion of further rights, setting a reasonable deadline for remedy, otherwise the customer shall forfeit the resulting rights. This shall not apply in the event of fraudulent, wilful or grossly negligent action on our part, in the event of injury to life, limb or health or the assumption of a guarantee or a procurement risk pursuant to Section 276 BGB or in the event of mandatory statutory liability.
8.5 We shall remedy defects for which the customer is responsible and unjustified complaints on behalf of and at the expense of the customer if the customer is a registered trader within the meaning of the German Commercial Code.
8.6 Insofar as the breach of duty does not exceptionally relate to a work performance on our part, cancellation is excluded if our breach of duty is insignificant.
8.7 Unless expressly agreed otherwise in writing or in text form, we shall provide a warranty for material defects for a period of 12 months, calculated from the date of the transfer of risk (see Clause 7.3), in the event of the customer refusing to accept or take delivery from the date of the notification of readiness to take delivery of the goods. This does not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB, claims due to injury to life, limb or health, fraudulent, intentional or grossly negligent behaviour on our part, or in the cases of §§ 478, 479 BGB (recourse in the supply chain), § 438 para. 1 No. 2 (construction of buildings and delivery of items for buildings) and § 634a Para. 1 No. 2 BGB (construction defects) or insofar as a longer limitation period is otherwise stipulated by law. § Section 305b BGB (the precedence of individual agreements in verbal, textual or written form) remains unaffected. A reversal of the burden of proof is not associated with the above provision.
8.8 If the customer or a third party improperly repairs the products delivered by us, we shall not be liable for the resulting consequences. The same applies to any changes made to the delivery item without our prior consent.
8.9 Further claims of the customer due to or in connection with defects or consequential damage caused by defects, for whatever reason, shall only exist in accordance with the provisions of Clause 11.
8.10 Our warranty within the framework of purchase contracts concluded with us (i.e. claims arising from breach of duty due to defective performance in the event of material defects in connection with the purchase contract concluded with us) and the liability arising therefrom shall be excluded insofar as defects and associated damage are not demonstrably based on defective manufacturing materials, defective design and/or production and/or processing or, insofar as owed, defective instructions for use. In particular, the warranty and the resulting liability due to breach of duty due to poor performance is excluded for the consequences of incorrect use, unsuitable storage and transport conditions, and for the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the average standard influences listed in our product description and/or operating instructions or a deviating product specification or the respective product-specific data sheet on our part. The above shall not apply in the event of fraudulent, grossly negligent or intentional behaviour on our part, or injury to life, limb or health, the assumption of a guarantee, a procurement risk in accordance with Section 276 BGB and liability in accordance with any other mandatory statutory liability.
8.11 Claims for defects shall not exist in the event of only insignificant deviations from the agreed or customary quality or usability.
8.12 Recognition by us of breaches of duty in the form of material defects must always be made in writing.
9.1 All prices are quoted ex works or ex warehouse and in principle in EURO net excluding packaging, freight, postage and, if transport insurance has been agreed, insurance costs, plus value added tax to be borne by the customer (if legally applicable) at the legally prescribed rate ex works or ex warehouse, plus any country-specific charges for deliveries to countries other than the Federal Republic of Germany, plus customs duties and other fees and public charges for the delivery/service. Unless otherwise agreed with the customer, the valid prices are based on our general price list applicable at the time of conclusion of the contract between us and the customer.
The minimum net order value is € 60. For all orders under € 60,- we charge a minimum quantity surcharge of € 15,-.
If it has been agreed that the price is dependent on the partial weight, the final price is determined by the weight of the approved reference samples.
9.2 Payment methods other than cash payment or bank transfer require a separate agreement between us and the customer; this applies in particular to the issue of cheques and bills of exchange
9.3 If the customer or we incur taxes or duties on the service provided by us (withholding tax), the customer shall indemnify us against these taxes and duties.
9.4 We shall be entitled to issue partial invoices in accordance with the progress of order processing and/or to demand instalment payments in accordance with the progress of processing.
9.5 Unless otherwise agreed, the purchase price shall be
a.) for plastic injection moulds with 50 % of the purchase price to be paid net when the order is placed and 50 % when the reference samples are submitted. For dipping moulds, the full cost rate is payable net immediately upon placement of the order.
b.) for partial deliveries or other services within 10 days of the invoice date less 2 % discount or within 30 days of the invoice date strictly net. The granting of a discount is subject to the settlement of all previous invoices due.
9.6 If the customer pays in a currency other than EURO, fulfilment shall only take place if the foreign currency payment corresponds to the agreed EURO amount on the day of receipt of payment.
9.7 Unless otherwise agreed, services that are not part of the agreed scope of delivery shall be performed on the basis of our current general price lists.
9.8 If, by way of exception, we bear the freight costs in accordance with the contract, the customer shall bear the additional costs resulting from increases in freight rates after conclusion of the contract.
9.9 Upon the occurrence of default, default interest shall be charged at a rate of 9 percentage points above the base interest rate applicable at the due date of the payment claim in accordance with Section 247 BGB. We reserve the right to claim further damages.
9.10 If a bank transfer has been agreed, the date of payment shall be the date on which the money is received by us or credited to our account or to the account of the paying agent specified by us.
9.11 If the customer is in default of payment, all payment claims arising from the business relationship with the customer shall become due immediately. Irrespective of any deferral agreements, bill of exchange and instalment payment agreements, in this case all liabilities of the customer towards us shall be due for payment immediately.
9.12 If payment terms are not complied with or circumstances become known or recognisable which, according to our dutiful commercial judgement, give rise to justified doubts about the creditworthiness of the customer, including such facts which already existed when the contract was concluded but which were not known to us or should have been known to us, we shall be entitled, without prejudice to further statutory rights in these cases, to discontinue further work on current orders or deliveries and to demand advance payments or the provision of appropriate, customary securities for outstanding deliveries, e.g. in the form of a bank guarantee from a German credit institution affiliated to the Deposit Protection Fund, and, after the unsuccessful expiry of a reasonable grace period for the provision of such securities - without prejudice to further statutory rights.The customer shall be entitled to demand advance payments or the provision of appropriate, customary securities, e.g. in the form of a bank guarantee from a German credit institution affiliated to the Deposit Protection Fund, for outstanding deliveries and, after the unsuccessful expiry of a reasonable grace period for the provision of such securities, to withdraw from the contract with regard to the part not yet fulfilled, without prejudice to further statutory rights. The customer is obliged to compensate us for all losses incurred as a result of the non-fulfilment of the contract.
9.13 The customer shall only have a right of retention or set-off with regard to counterclaims that are not disputed or have been recognised by declaratory judgement.
9.14 The customer may only exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
9,156 Incoming payments are first used to repay costs, then interest and finally the principal receivables according to their age.
Any conflicting provision of the customer at the time of payment is irrelevant.
9.16 The timeliness of payment, regardless of the method used, shall be determined exclusively by the date on which the payment is credited to our account. In the case of cheque payments, the value date shall be decisive. Payments by the customer must be made free of postage and charges in our favour.
10.1 We reserve title to all goods delivered by us (hereinafter collectively referred to as "goods subject to retention of title") until all our claims arising from the business relationship with the customer, including future claims arising from contracts concluded at a later date, have been settled. This shall also apply to a balance in our favour if individual or all claims are included by us in a current account (current account) and the balance is drawn.
10.2 The customer shall insure the goods subject to retention of title at replacement value, in particular against fire and theft. Claims against the insurance company arising from a claim relating to the reserved goods are hereby assigned to us in the amount of the value of the reserved goods.
10.3 The customer is authorised to resell the delivered products in the ordinary course of business. Other dispositions, in particular pledging or granting of ownership by way of security, are not permitted. If the goods subject to retention of title are not paid for immediately by the third-party purchaser on resale, the customer shall be obliged to resell them only subject to retention of title. The authorisation to resell the goods subject to retention of title shall lapse without further ado if the customer suspends payment or defaults on payment to us.
10.4 The customer hereby assigns to us all claims, including securities and ancillary rights, which accrue to him from or in connection with the resale of reserved goods against the final purchaser or against third parties. He may not enter into any agreement with his purchasers which excludes or impairs our rights in any way, or which cancels the advance assignment of the claim. If goods subject to retention of title are sold together with other items, the claim against the third-party purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer, unless the amounts attributable to the individual goods can be determined from the invoice.
10.5 The customer shall remain authorised to collect the claim assigned to us until our revocation, which is permissible at any time. However, we undertake to revoke the direct debit authorisation only in the event of a justified interest. Such a justified interest exists, for example, if the customer does not properly fulfil his payment obligations or is in default of payment. At our request, the customer is obliged to provide us with all information and documents necessary for the collection of assigned claims and, if we do not do so ourselves, to inform his customers immediately of the assignment to us.
10.6 If the customer includes claims from the resale of goods subject to retention of title in a current account relationship existing with his customers, he hereby assigns to us any recognised final balance in his favour in the amount corresponding to the total amount of the claim from the resale of our goods subject to retention of title included in the current account relationship.
10.7 If the customer has already assigned claims from the resale of the products delivered or to be delivered by us to third parties, in particular on the basis of genuine or unreal factoring, or made other agreements on the basis of which our current or future security rights pursuant to Clause 10 may be impaired, he must notify us of this immediately. In the event of non-genuine factoring, we shall be entitled to withdraw from the contract and demand the return of products already delivered. The same applies in the case of genuine factoring if the customer cannot freely dispose of the purchase price of the claim in accordance with the contract with the factor.
10.8 If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back all goods subject to retention of title after cancellation of the contract. In this case, the customer shall be obliged to surrender the goods without further ado and shall bear the transport costs required for the repossession. Our repossession of the reserved goods shall constitute a cancellation of the contract. In the event of withdrawal, we are entitled to realise the reserved goods. The proceeds of realisation, less reasonable costs of realisation, shall be offset against those claims which the customer owes us from the business relationship. We may enter the customer's business premises at any time during normal business hours to determine the inventory of the goods delivered by us. The customer must inform us immediately in writing of any access by third parties to goods subject to retention of title or claims assigned to us.
10.9 If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by a total of more than 10%, we shall be obliged to release securities of our choice at the customer's request.
10.10 Processing and treatment of the goods subject to retention of title shall be carried out for us as the manufacturer, but without any obligation on our part. If the goods subject to retention of title are processed or inseparably combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the net invoice amount of our goods to the net invoice amounts of the other processed or combined items. If our goods are combined with other movable items to form a single item which is to be regarded as the main item, the customer hereby transfers co-ownership to us in the same proportion. The customer shall hold the ownership or co-ownership for us free of charge. The resulting co-ownership rights shall be deemed to be reserved goods. At our request, the customer shall be obliged at any time to provide us with the information required to pursue our ownership or co-ownership rights.
10.11 If, in the case of deliveries abroad, certain additional measures and/or declarations regarding the agreement of the retention of title are required on our part in the importing country in order for the above-mentioned retention of title or the other rights specified therein to be effective, the customer must carry out such measures and/or declarations immediately at his own expense or submit these declarations in due form. We shall co-operate in this to the extent necessary. If the law of the importing country does not permit retention of title, but allows us to reserve other rights to the delivery item, we may exercise all rights of this kind at our reasonable discretion (Section 315 BGB). Insofar as such equivalent security for our claims against the customer is not achieved, the customer shall be obliged to provide us with other suitable security for the delivered goods or other security at its own expense without delay at our reasonable discretion (Section 315 BGB). The customer's right to judicial review and correction (§ 315 III BGB) shall remain unaffected in each case.
10.12 In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable to us for the loss incurred by us.
11.1 Subject to the following exceptions, we shall not be liable, in particular not for claims of the customer for damages or reimbursement of expenses - irrespective of the legal grounds - in the event of a breach of obligations arising from the contractual relationship.
11.2 The above exclusion of liability pursuant to Clause 11.1 shall not apply insofar as liability is mandatory by law, as well as:
- for own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
- for the breach of material contractual obligations; "material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely";
- in the event of injury to life, limb and health also by legal representatives or vicarious agents;
- in the event of default, insofar as a fixed delivery and/or fixed performance date was agreed;
- insofar as we have assumed a guarantee for the quality of our goods or the existence of a performance result, or a procurement risk within the meaning of § 276 BGB;
- in the event of liability under the Product Liability Act or other mandatory statutory liability.
11.3 In the event that we or our vicarious agents are only guilty of slight negligence and there is no case of the above clause 11.2, 4th, 5th and 6th indents, we shall only be liable for the foreseeable damage typical of the contract, even in the event of a breach of essential contractual obligations.
11.4 Our liability shall be limited for each individual case of damage to a maximum liability sum of EUR 750,000.00. This shall not apply if we are guilty of fraudulent intent, intent or gross negligence, for claims due to injury to life, limb or health and in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance with § 276 BGB or in cases of legally binding higher liability sums. Any further liability is excluded.
11.5 The exclusions or limitations of liability in accordance with the above Clauses 11.1 to 11.4 and Clause 11.6 shall apply to the same extent in favour of our executive bodies, our executive and non-executive employees and other vicarious agents as well as our subcontractors.
11.6 A reversal of the burden of proof is not associated with the above provisions.
12.1 The price for moulds (tools) also includes the costs for one-off sampling, but not the costs for testing and processing equipment or changes requested by the customer. Costs for further sampling for which we are responsible shall be borne by us.
12.2 Unless otherwise agreed, we are and remain the owner of the moulds (tools) manufactured for the customer by ourselves or by a third party commissioned by us.
12.3 Moulds shall only be used for the customer's orders as long as the customer meets its payment and acceptance obligations. We shall only be obliged to replace the moulds free of charge if they are required to fulfil an output quantity expressly guaranteed to the customer. Our obligation to store moulds shall expire two years after the last delivery of parts from the mould and prior notification of the customer (the date of receipt of the notification shall be decisive in this respect).
12.4 If, as agreed, the customer is to become the owner of the moulds, ownership shall only pass to him after full payment of the purchase price for them. The handover of the moulds to the customer is replaced by our obligation to store them. Irrespective of the customer's statutory right of surrender and of the service life of the moulds, we shall be entitled to exclusive possession of the moulds until the customer has accepted a minimum number of products to be manufactured with the mould to be agreed with us and/or until the expiry of a mutually agreed period of time. We must mark the moulds as third-party property and insure them at the customer's request and expense.
12.5 In the case of the customer's own moulds and/or moulds provided by the customer on loan, our liability with regard to storage and care shall be limited to the same care as in our own affairs. The customer shall bear the costs of maintenance and insurance. Our obligations shall lapse if the customer does not collect the moulds within a reasonable period of time after completion of the order or a corresponding request.
12.6 As long as the customer has not fulfilled his contractual obligations in full, we shall in any case have a right of retention to the moulds.
13.1 If materials are supplied to us by the customer, they must be delivered in good time and in perfect condition at the customer's expense and risk with an appropriate quantity surcharge of at least 5 %.
13.2 If this condition is not met, the delivery time shall be extended accordingly. Except in cases of force majeure, the customer shall also bear the corresponding additional costs for interruptions to production.
13.3 If we have to deliver according to drawings, models, samples or using parts provided by the customer, the customer shall be responsible for ensuring that the rights of third parties, in particular the industrial property rights of third parties, are not affected by this. The customer shall indemnify us against third-party claims and compensate us for any damage incurred. If a third party prohibits us from manufacturing or delivering on the basis of a right belonging to it, we shall be entitled to cease work if a summary examination of the legal situation provides objective evidence of the existence of a conflicting right of the third party.
13.4 Drawings and samples provided to us which have not led to an order shall be returned on request; otherwise we shall be entitled to destroy them three months after submission of the offer.
13.5 We are entitled to copyrights and, if applicable, industrial property rights to the models, moulds and devices, drafts and drawings designed by us or third parties on our behalf.
14.1 The place of fulfilment for all contractual obligations is the registered office of our company, with the exception of the case of the assumption of an obligation to be performed at the creditor's place of business or other agreements.
14.2 The exclusive place of jurisdiction for all disputes is - insofar as the customer is a merchant within the meaning of the German Commercial Code - the registered office of our company. For the sake of clarity, this jurisdiction provision in sentences 1 and 2 shall also apply to such matters between us and the customer which may lead to non-contractual claims within the meaning of EC Regulation No. 864/2007. However, we are also entitled to sue the customer at his general place of jurisdiction.
14.3 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the customer and us, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). It is expressly clarified that this choice of law is also to be understood as such within the meaning of Art. 14 para. 1 b) EC Regulation No. 864 / 2007 and shall therefore also apply to non-contractual claims within the meaning of this regulation. If foreign law must be applied in an individual case, our General Terms and Conditions shall be interpreted in such a way that the economic purpose pursued with them is safeguarded as far as possible.
Exchange pallets are exchanged one-for-one in accordance with the applicable UIC standard. We will pass on to the customer any additional costs that we incur due to the fact that it is not possible to exchange pallets step by step (e.g. due to the use of pallet service providers).
16.1 Insofar as trade terms are agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS 2010 shall apply.
16.2 All agreements, collateral agreements, assurances and amendments to the contract must be made in writing. This also applies to the waiver of the written form requirement itself. The precedence of individual agreements in written, textual, oral or implied form (Section 305b BGB) remains unaffected.
Note:
In accordance with the provisions of the Data Protection Act, we would like to point out that the processing of contracts in our company is carried out using a computerised system and that in this context we also store the data received as a result of the business relationship with the customer.
HAMCO Kunststoffverarbeitungs GmbH in August 2017
The European Commission provides a platform for online dispute resolution (OS): https://ec.europa.eu/consumers/odr/.
You can find our e-mail address in the legal notice above.
We are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
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