Terms & Conditions of Sale, Delivery and Payment for Hartwig & Führer GmbH & Co. KG
Valid from 01/06/1990
1. Conclusion of the contract
The Buyer’s order has not been accepted until it has been confirmed in writing or performed by us. Verbal or telephone agreements are only valid if we have confirmed them in writing. Unless otherwise agreed, prices quoted in our offers are only valid for a period of one month, starting from the date of the offer. Any other arrangement must also be in writing. Written confirmation as defined in these terms and conditions may only be issued by the Seller’s management.
The place of fulfilment for deliveries is the registered address of the Seller. Statements of delivery times are considered approximate. The Buyer must extend to the Seller a reasonable grace period for fulfilment after the end of the stated delivery period. Only at the end of this grace period may the Buyer extend to the Seller a further reasonable grace period, after which the Buyer may withdraw from the contract in writing, provided the Buyer has stated in writing its intention to withdraw from the contract in the terms of the additional grace period.
In cases of force majeure, the Seller shall be entitled to postpone manufacture and delivery for the duration of the obstruction plus a reasonable start-up period, or to withdraw from the part of the order or contract that has not yet been fulfilled. The Buyer is not entitled to extend to the Seller a grace period with threat of termination for the duration of the incidents of force majeure. The Buyer may insist that the Seller declare whether it intends to withdraw from the contract or deliver within a reasonable grace period. If the Seller fails to declare its intentions despite written instruction to do so, the Buyer shall be entitled to withdraw from the contract.
Circumstances which make delivery by the Seller significantly more difficult or impossible are equivalent to force majeure, regardless of whether the circumstances directly affect the Seller or its supplier.
The object of purchase is shipped on the account and at the risk of the Buyer. It is at the discretion of the Seller to select the shipping method, unless a particular shipping method was agreed in writing.
The Seller’s invoices are due for immediate payment. The Seller grants a 2% early payment discount on the invoice amount if payment is received within eight days after the invoice date. From the 31st day after the invoice date, the Seller shall be entitled to charge 2% default interest above the respective Landeszentralbank discount rate. The Seller has the right to demonstrate and claim additional damages due to default. Bills of exchange are only accepted by the Seller as conditional payment. If bills of exchange are accepted at secondary locations or abroad, the Seller does not guarantee that a protest will be lodged in time. The full invoice amount is due for immediate payment in the event of cessation of payment or initiation of composition or bankruptcy proceedings in regard to the Buyer’s assets, even if settlement takes place by banker’s acceptance or cheques.
The Seller is entitled to suspend and withhold further deliveries in the event that the Buyer has not punctually settled outstanding invoice amounts in full. The Buyer shall on no accounts be entitled to withhold payments or offset them against agreed payments, even if it submits notification of defects or incompleteness in the Seller’s deliveries. Only payments to the management have discharging effect.
The Buyer is obliged to make full payment, even if it does not take possession of the ordered goods. For the event that the Buyer refuses to accept the goods, it must pay 50% of the agreed total price as compensation, without prejudice to the right of the Seller to demonstrate and claim further damages. Under no circumstances will this affect the Seller’s right to demand fulfilment of the contract.
5. Retention of title
Title to the goods remain with the Seller until payment has been made in full for the goods delivered. If bills of exchange or cheques are accepted, payment shall only be deemed to have been made once the financial instruments have been redeemed. The Seller leaves the goods in the possession of the Buyer until transfer of ownership. The Buyer remains in possession of the goods on behalf of the Seller until transfer of ownership takes place. Risks associated with the object of purchase are assigned to the Buyer during this period. The Buyer is obliged, for the duration of this period, to treat the delivered goods carefully and to keep them unimpaired by defects or damage. If the delivered goods are damaged or otherwise impaired until transfer of ownership to the Buyer, the Buyer shall be fully liable to the Seller for any damage to the goods or a reduction in their value caused by other events, regardless of whether or not the Buyer is responsible for the damage or reduction in value.
For the event that the Buyer resells the delivered goods prior to full payment of the purchase price, it automatically assigns to the Seller all receivables and ancillary rights in relation to its customer that arise from the resale of the delivered goods. The Buyer must, upon instruction by the Seller, name its customer and notify its customer of the assignment. This does not affect the Seller’s right to notify the customer of the assignment itself and to instruct the Buyer simultaneously to confirm the assignment to its customer in writing. The Buyer must inform the Seller without delay of any seizure of delivered goods by third parties.
The Buyer must inspect the delivered goods without delay to ascertain their faultless condition and must notify the seller immediately of any defects. Where notification of this kind is not submitted within 10 days, the goods shall be deemed to have been received by the Buyer in a faultless condition. The Seller must be notified without delay by registered mail – and no later than 10 days after their discovery – of any defects that cannot be identified in an immediate inspection.
If defects are identified, the Seller shall be obliged, at its own discretion, to make a replacement delivery or issue a credit note for the reduction in value, or in the case of an incomplete delivery, to perform supplementary delivery. The Buyer shall not be entitled to exercise any additional claims, in particular with regard to damages.
The Seller does not manufacture the goods delivered to the Buyer in every case. The Seller does not provide any warranty for goods that it has not manufactured. Notwithstanding, the Seller assigns to the Buyer any warranty claims against the manufacturer upon conclusion of the contract. The same notification periods as stated above shall apply to these claims, whereby these claims can be effectively submitted to the Seller as well. Any and all warranty commitments on the part of the Seller and the manufacturer shall lapse if the Buyer neglects to comply with the notification periods as stated above. The same shall apply if the Buyer carries out repairs, improvements or modifications on the objects of purchase before the Seller exercises its discretionary right to select a response to justified notices of defects. The liability of the Seller and the authoritative periods shall otherwise be governed by the provisions set out in the German Civil Code [BGB].
Any agreement with the Seller concerning the assembly or installation of delivered items must be in writing. In such a case, the transfer of risk for the objects of purchase to be installed and the risk of their damage or accidental loss shall nevertheless be transferred to the Buyer upon their departure from the Seller’s place of business. The Seller accepts no liability for subsequent damages caused by their assembly or installation. The Seller's warranty obligation for proper installation shall lapse two years after the completion of installation. This period shall not be extended by negotiations or inspections of assembly defects or measures intended for their rectification. Insofar as the Buyer requests a separate acceptance of assembly work, the terms of this acceptance must be agreed upon conclusion of the contract at the latest. The Buyer shall bear the costs of this acceptance. If the Buyer fails to cooperate in the agreed acceptance, assembly will be deemed to be properly executed after expiry of the period extended by the Seller for cooperation.
The Seller’s liability for additional assembly shall otherwise be governed by the terms set out in the German procurement and contract regulations for construction works [VOB].
8. Place of jurisdiction
The court at the Seller’s place of business, i.e. the Gütersloh District Court or the Bielefeld Regional Court, shall have local jurisdiction for all disputes arising from the contract between the Seller and the Buyer.
Hartwig & Führer
GmbH & Co. KG