C. G. Haenel GmbH
Fon +49 (0) 3681 854 0
Fax +49 (0) 3681 854 203
Registered at county court Jena HRB 113864
Value added tax identification number DE 247559324 01/2009
Managing director: Olaf Sauer
Law responsible within the meaning of § 55 Abs. 2 RStV: Olaf Sauer
Concept, implementation and programming:
id pool GmbH
Krefelder Straße 32
Terms and Conditions & Exclusion of liability
General Terms and Conditions for the Supply of Goods
General Terms and Conditions for the supply of goods (hereinafter referred to as General Conditions of Sale) for C. G. Haenel GmbH (hereinafter referred to as Haenel).
§ 1 General, Basis of Contract
(1) All deliveries, performance, and contractual offers of Haenel are exclusively governed by the following General Conditions of Sale. The General Conditions of Sale shall only apply where Haenel’s contracting party (hereinafter referred to as the Customer) is a business entity within the meaning of sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal entity governed by public law, or certain public law funds.
(2) These General Conditions of Sale apply to the exclusion of any other terms. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become a part of the contract where Haenel consents in writing to their incorporation. This consent requirement shall apply in any event, for example, also in circumstances where Haenel delivers the goods to the Customer unconditionally whilst being fully aware of the Customer’s general terms and conditions.
(3) Declarations and statements of a legal nature (e.g. the setting of deadlines, notices of defects, statements of rescission (Rücktritt), or price reductions (Minderung)) made by the Customer to Haenel after conclusion of the contract must be made in writing (Schriftform) in order to be effective.
§ 2 Conclusion of Contracts
(1) All offers made by Haenel shall be discretionary and non-binding. This also applies where Haenel provides the Customer with catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which Haenel reserves its proprietary and copyrights. Any passing on of information by the Customer to third parties which is marked as “confidential” or with other similar marking shall require the prior written consent of Haenel.
(2) The ordering by the Customer of goods constitutes a binding offer (verbindliches Vertragsangebot) by the Customer. Haenel is entitled to accept this offer (Annahme) within 2 (two) weeks of receipt by providing a written acceptance confirmation. Any customary modifications made by Haenel to the offer do not constitute a change of the order and shall be considered as having been approved by the Customer. Any such modification shall not be considered as having been approved by the Customer where the Customer objects to the acceptance confirmation in writing to Haenel without undue delay (unverzüglich) after receipt.
§ 3 Delivery Date
(1) The delivery date (Lieferfrist) shall be agreed individually or determined by Haenel on acceptance of the order. The delivery date shall be deemed met if the goods have been made available to the Customer at the place of delivery (Lieferort) within the delivery period. Deliveries in part shall be permitted insofar as the partial delivery is comprised of complete parts of the ordered goods, takes place within the delivery period, and is acceptable to the Customer.
(2) Where Haenel fails to meet the agreed delivery date for reasons for which Haenel is not responsible (non-availability of performance) Haenel shall, without undue delay, inform the Customer thereof together with the expected new delivery date. Haenel shall be entitled to rescind (zurücktreten) the contract in whole or in part where the goods are not available within the new delivery period; Haenel will without undue delay reimburse any payments made by the Customer. An example of non-delivery by Haenel in this sense includes the delayed delivery to Haenel by any of its suppliers when Haenel has entered into a matching cover transaction (kongruentes Deckungsgeschäft), and neither Haenel nor the supplier are at fault, or if in the individual case Haenel is not obliged to source the particular item.
(3) The rights of the Customer pursuant to sec. 9 of these General Conditions of Sale and the statutory rights of Haenel, in particular regarding the release from the obligation to perform (e.g. due to impossibility to perform (Unmöglichkeit) or disproportionality (Unzumutbarkeit) of the contractual performance and/or the specific performance (Nacherfüllung)), shall remain unaffected.
§ 4 Delivery, Passing of Risk, Acceptance, Delay of Acceptance
(1) The delivery of Haenel shall take place EXW („ex works“), Schützenstraße 26, Suhl, Germany, Incoterms 2010, unless otherwise agreed.
(2) A formal acceptance (Abnahme) within the meaning of sec. 640 BGB shall be relevant for the passing of risk (Gefahrübergang) as far as such formal acceptance is agreed. The statutory provisions applicable to works (Werkvertragsrecht) shall accordingly apply to the agreed formal acceptance. Where the Customer is in delay of acceptance (Annahmeverzug) this will be considered as handover (Übergabe) or formal acceptance within the meaning of sec. 640 BGB.
(3) Haenel shall be entitled to claim damages including additional expenditures (e.g. storage costs) that arise out of a delay of acceptance, a failure of cooperation and assistance of the Customer, or a delay of delivery for other reasons for which the Customer is responsible. For this purpose, Haenel shall be entitled to liquidated damages (pauschalierte Entschädigung) at a fixed damages rate of 0.5% (per cent.) of the price (ex VAT) per calendar week beginning on the delivery date.
The right of Haenel to demonstrate greater damage and the right to make the statutory claims (in particular claim of additional expenditures, reasonable compensation, notice of termination) shall remain unaffected; payments made under the fixed damages rate may be set-off against valid Customer claims. The Customer is entitled to prove that Haenel incurred no loss or that the loss incurred is significantly lower than the total amount charged in accordance with the fixed damages rate.
§ 5 Price and Payment Terms
(1) Unless otherwise agreed, the prices are in Euro (ex. VAT) and EXW („ex works“) within the meaning of Incoterms 2010.
(2) Negotiations regarding price adjustments shall be held on Haenel’s request where a delivery date and/or contractual performance is set to occur more than four months after conclusion of the contract and where prices for the required material and/or labour costs (including labour related costs due to statutory or negotiated (tariflich) changes), increase by more than 5% (per cent.) as compared to the date on which the contract was concluded.
(3) Unless otherwise agreed, the Customer shall bear the bank charges incurred outside Haenel’s home country as well as all bank letter of credit charges even if these are incurred in Haenel’s home country. The Customer shall bear exchange rate risks and costs on payments made in foreign currencies (currencies other than the Euro or the official currency for the time being in Germany).
(4) In accordance with the German Packaging Ordinance (Verpackungsordnung), other than in respect of the transport packaging, Haenel does not arrange for or accept the return of any packaging.
(5) The purchase price is due (fällig) immediately and is payable within 30 days without any deduction from and including the later to occur of: (i) date of the invoice; and (ii) delivery or formal acceptance (as the case may be).
(6) The Customer is in delay (in Verzug) on the lapsing of the aforementioned payment period (Zahlungsfrist). Payments shall be deemed made when received by Haenel. Payments made by cheque shall be deemed to have been received only after the amount has been credited to Haenel’s bank account. During any delay (Verzug), the Customer shall pay the statutory interest rate (gesetzlicher Verzugszinssatz) applicable at that time on the purchase price. Haenel reserves all rights to claim further damages for delay. In respect of Customers that are business people or entities (Kaufleute), Haenel shall also be entitled to claim the commercial interest rate payable when due (kaufmännischer Fälligkeitszinssatz) (sec. 353 of the German Commercial Code, Handelsgesetzbuch, HGB).
(7) Cheques and bills of exchange may be accepted, however, without any legal obligation, on the basis of prior written agreement only, on account of performance (erfüllungshalber), and without prejudice to any other payment obligations. The Customer shall bear any discount charges.
§ 6 Set-off, Rights of Retention and Assignment
(1) The Customer shall only have a right of set-off (Aufrechnung) and a right of retention (Zurückbehaltungsrecht) if and to the extent its claim is final and binding (rechtskräftig) as determined by a competent court or is undisputed (unbestritten). In case of defective delivery, the Customer’s legal rights shall remain unaffected.
(2) The Customer shall not be entitled to assign (abtreten) receivables arising out of the contractual relationship with Haenel.
§ 7 Retention of Title
(1) Haenel retains title to the goods sold as well as illustrations, drawings, calculations and other documents until receipt of full payment from the Customer of all its present and future payment obligations whether arising out of the specific sale of goods or the ongoing business relationship between the parties (secured receivables).
(2) Goods which are subject to retention of title must not be pledged (verpfändet) to third parties or provided as security (zur Sicherheit übereignet) prior to full payment. The Customer shall inform Haenel immediately in writing if and to the extent third parties try to take hold of goods owned by Haenel.
(3) Haenel shall be entitled to rescind (zurücktreten) the contract according to the statutory rules where there is a Customer breach, in particular, upon non-payment of the due purchase price, and to recover the goods to which Haenel retains title. Where the Customer fails to pay the due purchase price Haenel shall only be entitled to the above rescission and recovery rights where Haenel has set a reasonable new deadline and this is not met by the Customer or where the relevant statutory provisions do not require the setting of such new deadline.
(4) The Customer shall be entitled to sell and process (verarbeiten) the goods to which Haenel retains title within the ordinary course of its business. In such cases, the following provisions shall apply in addition:
(a) The retention of title shall apply to products to their full value which arise out of processing (Verarbeitung), mixing (Vermischung) or assembly (Verbindung) of the goods of Haenel whereby Haenel shall be considered as the manufacturer (Hersteller). Haenel shall acquire co-ownership in cases where the property right of third parties remains post processing, mixing, or assembly with the goods proportional to the invoice value of the processed, mixed, or assembled goods.
(b) The Customer hereby assigns its right to receive payment from its customers arising out of the resale of the goods or products to Haenel as a security (in total or in the amount of the co-ownership pursuant to the aforementioned subparagraph). Haenel hereby accepts the assignment. The Customer’s obligations under subparagraph 2 shall also apply to the assigned receivables.
(c) In addition to Haenel the Customer shall remain entitled to receive the assigned receivable. Haenel will not claim payment from the Customer’s debtor to the extent the Customer complies with all its own payment obligations towards Haenel, is not in delay of payment, no application for the opening of insolvency proceedings has been filed, and no other lack of performance exists. Where one of the above events have occurred, Haenel shall be entitled to request that the Customer discloses the assigned payment obligation and the Customer’s debtor, discloses all information necessary for the collection of the outstanding debt, hands over the relevant documents, and informs the debtor (third party) of the assignment.
(d) Where the realisable value of the security taken (in the form of the receivables assignment) exceeds Haenel’s payment claim by more than 10%, Haenel is obliged, on the Customer’s request, to release an appropriate amount of the security. Haenel is solely entitled to elect which particular security is released.
§ 8 Claims for Defects of the Customer
(1) Unless specified otherwise in the following, the statutory provisions regarding the rights of the Customer relating to material defects (Sachmangel) and defects of title (Rechtsmangel) (including but not limited to incorrect delivery, reduced delivery, as well as improper assembly or defective assembly instructions) shall apply. The specific statutory provisions regarding the final delivery of the goods to a consumer shall in any event remain unaffected (recourse of the supplier (Lieferantenregress) pursuant to sec. 478, 479 BGB).
(2) Insignificant and technically unavoidable discrepancies in quality, colour, weight, measurement, and design do not constitute a defect as far as such discrepancies are not unusual in the ordinary course of business (handelsüblich).
(3) The claims for defects (Mängelansprüche) of the Customer are subject to compliance with its statutory inspection and objection obligations (Untersuchungs- und Rügepflicht) (sec. 377, 381 HGB). The Customer is obliged to immediately notify Haenel in writing of any defect which is revealed during an inspection or thereafter. Any notification which is made within two weeks shall be deemed immediate whereby the timely sending (Absendung) of the notification shall suffice to meet this deadline. Irrespective of this inspection and objection obligation, the Customer shall be obliged to notify Haenel of any obvious defects (including incorrect delivery and reduced delivery) within two weeks of delivery whereby the timely sending of the notification shall also suffice to meet this deadline. The liability of Haenel in respect of defects not notified in the above manner or in respect of which no inspection was undertaken is excluded.
(4) Where delivered goods are defective, the Customer is entitled to claim specific performance (Nacherfüllung) by claiming either: (i) remedy of the defect (Nachbesserung); or (ii) substitute delivery free of defects (Ersatzlieferung). Where the Customer fails to make an election, Haenel is entitled to set a reasonable period within which the Customer is obliged to make an election. Where the Customer fails to make an election within the period set, the right to elect which form of specific performance is provided passes to Haenel.
(5) Haenel shall be entitled to make the specific performance conditional on the payment of the due purchase price by the Customer. The Customer shall be entitled to withhold a portion of the purchase price proportionate to the defect.
(6) The Customer is obliged to grant Haenel the time and opportunity necessary for the specific performance, in particular, to hand over the rejected goods for inspection purposes. In the case of the provision of a replacement, the Customer shall be obliged to return the defective good to Haenel pursuant to the statutory provisions. The specific performance does not include the disassembly of the defective goods or the re-assembly if Haenel was not responsible for the original installation.
(7) If a defect in fact exists, Haenel shall bear the costs necessary for the purpose of the inspection and specific performance, in particular transport costs, travel costs, personnel costs, and costs of material (not: disassembly and re-assembly costs). Haenel shall be entitled to claim compensation in respect of such costs incurred if it becomes apparent that the request for the remedy of defects of the Customer was unjustified.
(8) The Customer shall be entitled to rescind the contract or reduce (mindern) the purchase price where the specific performance failed or an adequate time line for the specific performance has either lapsed without success or was unnecessary according to statutory provisions. No right to rescind shall exist in case of an insignificant defect.
(9) Claims of the Customer for damages (Schadensersatz) or compensation for wasted expenditures (Ersatz vergeblicher Aufwendungen) shall only exist in accordance with sec. 9 and are otherwise excluded.
§ 9 Miscellaneous Liability
(1) Unless otherwise stated in these General Conditions of Sale, Haenel shall not be liable under any applicable statutory provisions for a breach of contractual or non-contractual obligations.
(2) In case of intent (Vorsatz) and gross negligence (grobe Fahrlässigkeit), Haenel shall be liable for damages (Schadensersatz) – irrespective of the legal source. In case of simple negligence (einfache Fahrlässigkeit), Haenel shall only be liable:
a) for damages arising from injury to life, body or health,
b) for damages arising out of a breach of material contractual obligations (Verletzung einer wesentlichen Vertragspflicht) (those fundamental obligations whose fulfillment makes the proper performance of the contract possible and whose observance the contracting party usually relies on and is entitled to rely on); in such cases the liability of Haenel is limited to the compensation of the reasonably foreseeable, typically to be expected damage. Haenel shall only be liable for those indirect and consequential damages which result from a breach and to the extent such damage can reasonably be expected to result from the ordinary use of the goods as contemplated by the contract (bestimmungsgemäße Verwendung des Vertragsgegenstandes).
(3) The limitations of liability pursuant to foregoing subparagraph 2 shall not apply in cases of Haenel’s fraudulent intent (Arglist) in respect of a defect or where Haenel has provided a guarantee in relation to a certain condition (Beschaffenheit) of the goods. The same shall apply for claims of the Customer under the German Product Liability Act (Produkthaftungsgesetz).
(4) The Customer shall only be entitled to rescind or to serve a termination notice (kündigen) where there is a breach of an obligation which does not constitute a defect and where Haenel is responsible for that breach of obligation. A Customer termination right (in particular under sec. 651, 649 BGB) is excluded. Other than described in this paragraph, the applicable statutory provisions and legal consequences shall apply.
§ 10 Force Majeure
(1) In the event of the occurrence of force majeure, the relevant party shall inform the other party without undue delay (unverzüglich) and in writing of such event as soon as such event becomes known to it. The affected party shall not be responsible for the delay or the inability to perform caused thereby.
(2) All unforeseeable events or events which are beyond the sphere of influence of the contractual parties and the effects of which on the performance of the contract cannot be avoided by reasonable efforts of the parties shall be considered a case of force majeure within the meaning of these General Conditions of Sale. This shall include, amongst others, the following events: war (declared or not), warlike state, acts of terrorism, riot, revolution, rebellion, military or civil coup, revolt, tumult, excesses, blockade, embargo, government order, obstruction, strikes, go-slow strikes, lock-out, epidemics, fire, flooding, storm surge, typhoon, hurricane or other storms having the magnitude of a catastrophe, earth quake, landslides, lightning, general lack of material, massive transportation accidents, and remanufacture of system parts for reasons over which Haenel has no influence if this leads to a delay of the contractual performance.
§ 11 Termination
Haenel shall be entitled to terminate the contract in writing with immediate effect for good cause at any time. The opening of insolvency proceedings over the assets of the Customer or the verifiable threat of such, or the winding up of the Customer shall constitute good cause. In such a case, all outstanding payments in respect of goods or services delivered or provided by Haenel shall become due and payable immediately; deferred payment agreements shall become null and void.
§ 12 Limitation Periods
(1) Notwithstanding sec. 438 para. 1 no. 3 BGB, the general limitation period for material defects and defects of title shall be one (1) year as of delivery. To the extent a formal acceptance is agreed, the limitation period commences with the formal acceptance.
(2) Statutory specific provisions regarding claims for restitution in rem (dingliche Herausgabeansprüche) of third parties (sec. 438 para. 1 no. 1 BGB), fraudulent intent (Arglist) of the seller (sec. 438 para. 3 BGB), and claims regarding a recourse of the supplier in cases of a delivery to a consumer (sec. 479 BGB) shall remain unaffected.
(3) The aforementioned limitation periods of the sale of goods law (Kaufrecht) shall also apply to contractual and non-contractual damage claims of the Customer based on a defect of the goods, provided the regular statutory provisions (sec. 195, 199 BGB) would not lead to a shorter limitation period in the individual case. The limitation periods of the German Product Liability Act shall in any event remain unaffected. Other than as described in this paragraph, the statutory limitation periods shall apply exclusively to damage claims of the Customer under to sec. 9.
§ 13 Choice of Law and Place of Jurisdiction
(1) The laws of the Federal Republic of Germany (excluding the provisions on international uniform law, in particular, the United Nations Convention on Contracts for the International Sale of Goods) shall apply to these General Conditions of Sale and all legal relations between Haenel and the Customer. The laws of the place where the good (Lageort der Sache) is located shall apply to the requirements and effects of the retention of title pursuant to sec. 7 insofar as the choice of law in favour of the German law is prohibited or invalid under this.
(2) Exclusive – also international – place of jurisdiction for all disputes directly or indirectly arising out of the contractual relationship with business people or entities (Kaufleute) within the meaning of the German Commercial Code, legal entities governed by public law, or certain public law funds shall be the registered seat of Haenel in Suhl. Notwithstanding the foregoing, Haenel shall be entitled to file a statement of claim in the home jurisdiction (allgemeiner Gerichtsstand) of the Customer.
§ 14 Consent in Data Use for Shipment Tracking
(1) In order to allow for our logistic partners to inform you by email about the status of your shipment and the date of delivery, we will pass on your postal address and your email address to the relevant logistic partner.
(2) If you do not consent, you can object to the passing on of the aforementioned data. In this case, please contact us at firstname.lastname@example.org
§ 15 Severability
If and to the extent any of the provisions of these General Conditions of Sale is or becomes invalid or void, the validity of the remainder of these General Conditions of Sale shall remain unaffected. The provision which is partly or completely invalid shall be replaced by a valid provision which comes as close as possible to the original economical intent of the parties.
Status of May 2017
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