Standard Terms

General Business Terms and Conditions of HFS Export-Import GmbH

 

1.     Applicable law

1.1    Unless agreed otherwise in writing, the following terms and conditions apply to contracts and deliveries, including those in the future.
1.2    The customer’s business terms and conditions, including purchasing terms and conditions, in deviation herefrom are not applicable, even where we do not expressly object to them.
1.3    The following business terms and conditions and the contracts and deliveries agreed upon in connection with the business relationships are subject exclusively to the law of the Federal Republic of Germany. 

 

2.     Conclusion of contracts

2.1     Unless expressly stipulated otherwise, our offers, prices, and other information are non-binding and subject to change.
2.2     The customer’s orders are not considered accepted until they are confirmed by us in writing, the goods are shipped, or an invoice is sent.
2.3     Amendments, supplementations, and side agreements must be made in writing in order to be effective.
2.4     Documentation included with the offer, such as images, drawings, and weight and size information, is approximate information, unless we have expressly characterised it as binding.

 

3.     Prices

3.1     Prices are quoted in euros from the place of supply.For domestic customers, prices do not include applicable value-added tax.
3.2     Prices are based on the statutory provisions in effect at the time of contract conclusion.The customer bears changes in duties or contributions (e.g. changes in import duties, customs, or excise taxes or introduction of export duties) that are unknown at the time of contract conclusion.

 

4.     Delivery

4.1     The German Civil Code (Bürgerliches Gesetzbuch, BGB) is controlling as to the interpretation of commercial clauses used.
4.2     Delivery is made at our discretion during an agreed delivery period.In the event of force majeure or other unforeseeable, extraordinary circumstances beyond our control that we or our input suppliers encounter and that make delivery impossible or unreasonably difficult (e.g. lack of transport possibility), we are released from the duty to deliver for the duration of the impediment and its aftermath, including where they occur during default in delivery.However, will rely on the aforementioned circumstances only if the customer was given timely notice of their occurrence.If the impediment lasts longer than two months, we have the right to rescind the contract, either in whole or in part, without owing compensation.
4.3     We are entitled to make partial deliveries and render partial services.Each of these is considered to be an independent delivery or service and is to be paid separately upon request.If payment of a partial delivery or partial service is unjustifiably delayed, we can suspend further delivery or service.
4.4     In the event that the delivery deadline is exceeded, default in delivery does not occur until the lapsing of a reasonable grace period set by the customer after expiry of the delivery period, unless a transaction was agreed upon calling for delivery by a specific date.In addition, the provisions of section 326 BGB apply with the limitation that the customer is entitled only to rescind the contract.Farther-reaching claims, including to compensation of damages, are precluded, unless the default is based on gross negligence or wilful misconduct.
4.5     Compliance with the agreed delivery deadline presupposes timely receipt of all documents, necessary approvals, and releases to be supplied by the customer and compliance with the agreed payment terms and other obligations.In the event of delays in this regard that are not our responsibility, we can claim a corresponding extension of the delivery deadline.
4.6     If the customer terminates the purchase contract, deposits previously paid by the customer are set off against the costs actually incurred by HFS Export-Import GmbH.

 

5.     Objections to defects and warranty

5.1     Obvious defects must be promptly objected to in writing or by fax, indicating the delivery date, our order number, and a product description of the goods objected to.Latent defects must be promptly objected to in the same manner following discovery.Objections to quantities and wrong deliveries may be asserted only within 14 days of delivery by sending the bill of lading or other documentation accompanying the delivery.
5.2     Wear and tear parts, like batteries, bulbs, fluorescent tubes, fuses, etc., as well as the performance of readjustments pursuant to the operating instructions, are not covered by the warranty.Likewise excluded from the warranty are damages following delivery that are caused by normal wear and tear, improper treatment, faulty maintenance by the customer, failure to observe operating rules, excessive usage, or other reasons for which we are not responsible.The warranty does not cover machinery, systems, equipment, facilities, or software that is offered used or purchased on sight.
5.3     In the case of a justified, timely objection to defects, the buyer’s right is limited to a claim to redelivery or repair, at our discretion.If we refuse to redeliver or repair, or if two redelivery or repair attempts fail during a reasonable period, the buyer may demand rescission of the contract or reduction of the purchase price.In order to perform the repair or the replacement delivery, the customer must provide us with the requisite time and opportunity at no charge and, to the extent it can reasonably be expected to do so, also with the staff and tools that become necessary at no charge.The customer is obligated to back up stored data prior to the performance of repair or service work.
5.4     The customer’s warranty claims lapse if the customer makes improper repairs or changes to the delivered object, or has third parties do so, without our written consent, unless a relationship between these measures and the defect objected to is not ruled out.For software, the warranty lapses, in particular, when the customer carries out its own programming work.
5.5     If it subsequently becomes apparent that the buyer’s objection or the warranty demand was unjustified, all costs occasioned by this are for the buyer’s account.
5.6    The statutory provisions of the Federal Republic of Germany are controlling for goods delivered by us.Deviations for countries outside of Germany require special agreements.uyer as well or before other courts competent according to any national or foreign laws.

 

6.     Compensation of damages

6.1    The customer’s claims of any nature for compensation of damages are precluded, irrespective of the legal reason on which they may be based, unless they involve unforeseeable damages based on the lack of an assured feature, where the assurance was specifically designed to protect the customer against such damages, they involve damages that are based on wilful misconduct or gross negligence on the part of management or a senior executive, or they involve unforeseeable damages on the basis of a breach of material contractual duties by us.
6.2     In cases involving responsibility under product liability, the customer is obligated to indemnify us against any type of product liability asserted against us by third parties – irrespective of the legal reason – where the customer has caused the defect triggering the liability.If we are liable to third parties due to a product defect, we can seek recourse in full against the customer if it fully or predominantly caused the defect. Any recourse claims of the customer against us under section 5 of the German Product Liability Act (Produkthaftungsgesetz) or sections 340 and 426 BGB are precluded.This does not apply if the defect was caused due to our gross negligence or wilful misconduct.

 

7.     Payment and payment default

7.1     Unless agreed otherwise, invoices are due for payment immediately upon receipt and without any deduction.
7.2     The acceptance of bills of exchange requires special agreement, to which we are not obligated.If we accept bills of exchange, the customer bears the costs of bank discounting and collection.Bank discounting fees, taxes on bills of exchange, and default interest are payable immediately.Bills of exchange and cheques are accepted only under the proviso that they are honoured and only subject to their collection.
7.3.    If the customer is in payment default, we are entitled to charge interest at the rate of 5% over the respective discount rate of the Deutsche Bundesbank.The assertion of farther-reaching damages from default remains reserved.
7.4.     Irrespective of the agreed method of payment, we can demand advance payment or the posting of security for our claims if the customer’s financial circumstances experience a material deterioration after contract conclusion, if there are justified doubts about the customer's ability or willingness to pay, or if there is a deterioration in the information about the customer’s financial circumstances provided by a credit reporting agency, bank, or credit insurance company.If the customer refuses to make advance payment or post security, we are entitled to rescind the contract, cease providing all further services, and demand compensation of expenses incurred to such point.In addition, where the circumstances described in sentence 1 exist, we are entitled to revoke the payment terms granted for goods already delivered.
7.5     Subject to express, differently worded understandings, “net without deduction” is agreed upon as the payment term.The customer may exercise a right of retention with counterclaims if same are uncontested or have been reduced to an enforceable judgment.

 

8.     Transport and passage of risk

8.1     Shipment is made at the customer’s expense and risk.Absent a differently worded agreement, we designate the means and route of transport, without being responsible for the choice of the quickest or least expensive option.Insofar as we are not obligated by express agreement or the commercial clauses used to obtain insurance, the goods generally travel without insurance.Unless specified otherwise by the commercial clauses used, risk always passes to the customer when the goods are handed over to the shipper or first freight-forwarder.This also applies, in particular, to the clause “frei Bestimmungsort” (free at destination).
8.2     In the event that the goods are lost or damaged during transport, the customer must notify us immediately and promptly arrange for the carrier to prepare a report.

 

9.    Retention of title and security right

9.1     We retain title to the delivered goods until payment in full of all claims under our business relationship with the customer, including future claims and all ancillary claims.Retention of title remains in place as long as we have not been definitively satisfied under a liability for a bill of exchange entered into in the customer’s interest.It also remains intact if our individual claims are included in a current invoice and the total due is calculated and accepted.
9.2     Until revocation, the customer is entitled to resell goods subject to retention of title in connection with its ordinary course of business, provided that the goods are resold under express reference to the extended retention of title.The customer hereby assigns to us all claims to which it is entitled from the resale, including all ancillary rights.However, until revocation, it is authorised to collect the assigned claims itself.We will refrain from making use of the right to revoke the authorisation to resell and collect as long as the customer is punctually meeting its payment obligations to us.Upon request, the customer must notify us about the parties owing the assigned claims, provide us with all information required to collect and enforce the claims, and turn over all necessary documentation.
9.3     The right to resell and to process the goods subject to retention of title lapses when payments cease to be made, bankruptcy or composition proceedings are initiated or objected to, a cheque or bill of exchange is not honoured, or a lien is placed.Amounts from earlier resales received thereafter must immediately be collected in an escrow account.
9.4     Goods subject to retention of title may neither be pledged nor assigned for the purposes of security.The customer must promptly notify us about third-party enforcement actions concerning the goods subject to retention of title and hand over the documents necessary for an intervention.
9.5     If the customer breaches material contractual duties, including default in payment, then following a warning, we are entitled to take back the delivered goods, and the customer is obligated to surrender them.If we take back or place a lien on the goods subject to retention of title, same does not constitute rescission of the contract, unless the German Instalment Purchase Act (Abzahlungsgesetz) is applicable.

 

10.   Place of performance and place of jurisdiction

10.1    Dresden is the place of performance for all contractual obligations, including delivery and payment.
10.2     With respect to registered merchants, Dresden is the place of jurisdiction for all disputes arising under this contract.The same applies to lawsuits involving bills of exchange and cheques.We are also entitled at our discretion to bring suit against the buyer at its registered office.We must exercise this right of discretion within two weeks of being requested to do so by the customer.
10.3     If one or more provisions of these General Business Terms and Conditions should be or become ineffective, all other provisions remain in full force and effect.In the event that a provision is ineffective, it is replaced by an effective arrangement that most closely approximates its economic content.

 

11.   Data storage

11.1    The customer is in agreement that we may store its data relevant for contract fulfilment, including its customer data (section 26 of the German Federal Data Protection Act (Bundesdatenschutzgesetz)).

 

Version 10/2014

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