1. Scope of application

(a) Deliveries, services and offers by Hessenkemper GmbH (hereinafter also referred to as “Seller”) are exclusively based on these General Terms and Conditions (GTC). These shall be an integral part of all contracts which we conclude with our customers (hereinafter also referred to as “Contractual Partner”) for the deliveries or services offered by us. They shall also apply to all future deliveries, services or offers to the contractual partner, even if they are not separately agreed again.

(b) Terms and conditions of the contractual partner (GTC) or third parties shall not apply, even if we do not separately object to their validity in individual cases. We hereby object to their inclusion. Even if we refer to a letter that contains or refers to contractual terms and conditions of the contractual partner or a third party, this shall not constitute an agreement to the validity of those contractual terms and conditions. The objection shall apply in any case, for example even if the “Seller” carries out the delivery to the contractual partner without reservation in the knowledge of the contractual terms and conditions and purchasing conditions of the contractual partner.

(c) These General Terms and Conditions (GTC) shall only apply to companies (§14 BGB), legal entities under public law or special funds under public law (§310 para. 1 BGB).

2. Offer, conclusion of contract, deviating agreements and product specifications

(a) The offers of the “Seller” are subject to change without notice and are non-binding; this shall also apply if the Seller has provided technical documentation, other product descriptions or documents, including in electronic form. Unless such information is expressly marked as binding or contains a specific acceptance period. Orders or contracts may be accepted by the “Seller” within 10 working days of receipt.

(b) Solely authoritative for the legal relationship between the “Seller” and a “contracting party” is the purchase contract concluded in writing, including our General Terms and Conditions / GTC. Verbal agreements by the “Seller” prior to the conclusion of a contract are not legally binding. They shall only become effective if they are confirmed in text form by the “Seller”.

(c) Declarations of acceptance of a purchase contract require written or telecommunicative confirmation by means of a commercial letter of confirmation in order to be legally effective.

Objections to this commercial letter of confirmation must be raised in writing without delay, i.e. within 5 working days of receipt.

(d) Supplements and amendments to agreements made, also taking into account these General Terms and Conditions, must be in writing in order to be effective. Telecommunication is sufficient to comply with the written form.

(e) The information contained in brochures, catalogs, telecommunicative company presentations and other presentations regarding the object of the delivery, service and or offers (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. The contracting party shall satisfy itself by its own examination of the suitability of the products or the subject matter of the contract for the intended purpose.

(f) The “Seller” shall retain ownership or copyright of all offers made by the “Seller” as well as drawings, illustrations, calculations, brochures, catalogs, models, samples, tools and other documents and aids made available to the contractual partner. The “contracting party” may not make these materials available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties, or reproduce them without the express consent of the “Seller”. At the request of the “Seller”, he shall return these materials in full and destroy any copies made if they are no longer required for the proper conduct of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically/telecommunicatively provided data for the purpose of usual data backup.

3. Prices and payment

(a) The prices shall apply to the scope of services and deliveries listed in the commercial confirmation letters. Additional and special services shall be charged separately. The prices are quoted in EURO ex works plus packaging and the statutory value added tax at the applicable statutory rate. In the case of deliveries to a third country, customs duties as well as fees and other public charges are not part of the performance. The contractual partner shall bear the costs of any transport insurance.

(b) In the event of a not insignificant increase in wage and material costs after conclusion of the contract, the “Seller” may increase the agreed contract price by mutual agreement and appropriately. A substantial increase shall be deemed to have occurred if the cost factors have increased by at least 10% compared to the time prior to the conclusion of the contract. The buyer has the right to object. If the buyer exercises his right of objection in writing, the “seller” has the right to withdraw from the contract.

(c) The claim shall become due and payable when the goods are made available for shipment. The provision for shipment corresponds to the invoice date. Invoice amounts are to be paid within thirty days of the invoice date without any deductions, unless otherwise agreed in writing. Decisive for the date of payment is the receipt on a company account of the “Seller”. If the buyer does not pay within the set period, he will be in default even without a separate reminder. Bills of exchange are not accepted. If the customer does not pay on the due date, we reserve the right to charge 6% p.a. interest on the outstanding amounts from the due date. interest on the outstanding amounts from the due date. We reserve the right to claim higher interest due to changes in the financial market situation and further damages in the event of default.

(d) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed, ready for decision or legally established.

(e) The “Seller” shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, the “Seller” becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the “Contractual Partner”. The “Seller” normally declares a corresponding reservation with the “commercial letter of confirmation”. Exceptions confirm the rule here. In such a case, the “Seller” shall be entitled, at its discretion, to effect counter-performance concurrently with performance or to provide additional collateral. After expiry of the deadline set by the “Seller”, the “Seller” is entitled to withdraw from the contract.

4. Delivery and Delivery Time

(a) Time limits and deadlines for deliveries and services provided by the “Seller” are always only approximate and are not binding, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. This shall also apply if the shipment is carried out in whole or in part by the “Seller’s” own employees.

(b) Delivery shall be made “ex works” as a matter of principle.

“The Seller” may – without prejudice to our rights arising from default on the part of the “Contractual Partner” – demand from the “Contractual Partner” an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period of time during which the “Contractual Partner” fails to meet its contractual obligations towards the “Seller”.

(c) Delays in delivery and performance due to force majeure, unforeseeable operational disruptions, shortages of raw materials, difficulties in procuring materials or other events for which the “Seller” is not responsible shall entitle the “Seller” to postpone the delivery date by the duration of the “disruption” even if this date has been bindingly agreed. If, due to such a condition, it is impossible or unreasonable for the “Seller” to deliver and the “disruption” is not only of temporary duration, the “Seller” may withdraw from the purchase contract in whole or in part. In such a case, the “Seller” undertakes to inform the “Contractual Partner” without delay of the non-performance and to reimburse without delay any consideration already paid.

(d) We are entitled to make partial deliveries.

(e) If the “Seller” defaults on a delivery or service or if a delivery or service becomes impossible, for whatever reason, the liability of the “Seller” shall be limited to damages in accordance with “Item 8” of these “General Terms and Conditions”.

(f) Production-related and customary excess or short deliveries of up to 10% of the contractual quantity are permissible. The calculation shall be made via the actual delivery quantity.

5. Place of performance, transfer of risk

(a) The place of performance for all obligations arising from the contractual relationship is Arnsberg in Westphalia, unless otherwise specified.

(b) If the “Contractual Partner” orders the transport, the type of dispatch and the packaging shall be subject to the dutiful discretion of the “Seller”.

(c) The risk shall pass to the “Contractual Partner” at the latest when the object of the contract/delivery is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made. If the shipment or the handover is delayed due to a circumstance the cause of which lies with the “contractual partner”, the risk shall pass to the “contractual partner” from the day on which the delivery item is ready for shipment and the “seller” has notified the “contractual partner” of this. This shall also apply if the shipment is carried out in whole or in part by the “Seller’s” own employees.

6. Warranty, material defects

(a) The warranty period shall expire one year after the transfer of risk. The prerequisite for any warranty rights of the “Contractual Partner” is its proper fulfillment of the inspection and notification obligations owed in accordance with §377 of the German Commercial Code (HGB).

(b) The delivered items shall be inspected carefully immediately after delivery to the “Contractual Partner” or to the third party designated by him. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the “Contractual Partner” if we do not receive a written notice of defect within five working days after delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the “contracting party” if we do not receive a written notice of defect within five working days of the time at which the defect became apparent. If the defect was already apparent to the “Contractual Partner” at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the commencement of the period for giving notice of defects.

(c) Warranty claims are excluded if the “Seller” is not given the opportunity to inspect the goods complained about within ten calendar days after notification of the defect.

(d) In the event of a justified notice of defect, the “Seller” shall be obligated and entitled to rectify the defect or to make a subsequent delivery at its discretion. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the “Contract Partner” may withdraw from the contract or reduce the purchase price appropriately.

(e) The “Seller” reserves the right to refuse the reimbursement of expenses if this relates to the reimbursement of disproportionate costs, explicitly if the item delivered by the “Seller” is a part of an assembly. The “Seller” shall be liable exclusively in the amount of the value of the delivered goods. In the event of claims for compensation that are disproportionate, we will examine in each individual case whether the limit of disproportionality has been exceeded. In cases of disproportionate costs, on a voluntary basis of the “Seller”, the claim of our “Contractual Partner” is limited to the payment of a reasonable amount.

(f) The warranty shall not apply if the “contracting party” modifies the delivery item or has it modified by a third party without our consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the “Contractual Partner” shall bear the additional costs of remedying the defect resulting from the modification.

7. Extended and prolonged retention of title

(a) “The Seller” shall retain title to the delivered goods until the purchase price has been paid in full.

(b) In this context, the “Contractual Partner” shall properly store and keep the delivered goods separately from similar goods of other suppliers and mark them as originating from the delivery of the “Seller”. The “Contractual Partner” shall not be permitted to pledge, transfer by way of security or assign the goods as security. The “Contractual Partner” is obliged to notify the “Seller” immediately if the unpaid goods are encumbered with the rights of third parties or exposed to other interventions by third parties.

(c) The “Contracting Party” is authorized to process the goods delivered under retention of title as long as he is not in default of payment.

8. Liability for damages / limitation of liability

(a) Claims for damages by the “Contractual Partner”, irrespective of the legal grounds, in particular for breach of obligations arising from the contractual relationship and from tort, shall be excluded. “The Seller” shall not be liable in the event of simple negligence by its legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the delivery item on time, its freedom from defects of title as well as such material defects that impair the functionality in accordance with the contractual specifications more than insignificantly.

(b) Insofar as the “Seller” is liable on the merits for damages pursuant to Section 8, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.

(c) In the event of liability for simple negligence, the “Seller’s” obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to the amount covered by a customary liability insurance policy taken out by the “Seller”; even if this involves a breach of material contractual obligations.

(d) The above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the “Seller”.

(e) Insofar as the “Seller” provides technical information or acts in an advisory capacity, this shall be done free of charge and to the exclusion of any liability for such services.

(f) The limitations of clause 8 shall not apply to our liability for intentional conduct, for injury to life, body or health or under the Product Liability Act.

(g) Claims of the “Contractual Partner” for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are generally excluded. Claims of the “Contractual Partner” of processing costs due to its organizational structure which are asserted as costs for the processing of a quality defect are generally rejected.

9. Data protection

(a) The personal data of the contractual partner disclosed directly or by third parties in the course of the business relationship shall be stored by the “Seller” in a file and processed for business transactions. (Note according to the Federal Data Protection Act)

(b) The “Contractual Partner” consents to the processing by the “Seller” of the personal data made known about him directly or by third parties.

(c) The “Seller” is expressly permitted on the part of the “Contractual Partner” already by means of an offer processing to pass on, duplicate, utilize documents, drawings, etc., as well as to communicate their contents, insofar as this is necessary for the execution of a respective contractual process.

10. Place of jurisdiction/final provisions

(a) If the contractual partner is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all possible disputes arising from the business relationship between the “Seller” and the “Contractual Partner” shall be, at our discretion, Arnsberg in Westphalia or the registered office of the “Contractual Partner”. However, in such cases, Arnsberg in Westphalia shall be the exclusive place of jurisdiction for actions against the “Seller”. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(b) The relations between the “Seller” and the “Contractual Partner” shall be governed exclusively by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods and legal norms that refer to another legal system shall not apply. If copies of these “General Terms and Conditions” have been made in languages other than German, only the German version shall be binding for the “Seller” and the “Contractual Partner”, which can be accessed on the website www.hessenkemper.com at any time.

(c) Subsidiary agreements, amendments or supplements must be in writing in order to be effective, as must any waiver of the written form requirement. The written form in the sense of these “GTC” is also granted by e-mail or fax.

(d) Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the loophole.

(e) The “Seller” explicitly points out that any marketing of the contractual goods outside the territory of the European Economic Area requires the express written consent of the “Seller”.

Status: 01/2023