Terms of sale (last revised 01.09.2014)
I. General provisions
1.1. The General Terms and Conditions (hereinafter referred to as the "GT&Cs") are applicable in transactions with enterprises and commercial businesses. They are part of all future agreements concluded between Heine Optotechnik GmbH & Co. KG (hereinafter referred to as "HEINE") and its contractual partners (hereinafter referred to as "Customer(s)"), where the subject of the agreement is the sale of HEINE's products and merchandise.
1.2. The order and delivery of the products shall be carried out on the basis of separate purchase agreements, for which these GT&Cs apply in their relevant applicable version. In the event of an amendment to the GT&Cs, the Customer shall be informed of the amended GT&Cs by HEINE in good time (usually via the new price list).
1.3. These GT&Cs shall apply exclusively. Diverging, adverse or supplementary terms and conditions of the Customer shall only be part of the agreement inasmuch as HEINE expressly agrees to their validity in writing.
II. General terms and conditions of sale
(Conclusion of the agreement)
2.1. The offers of HEINE are subject to change.
Any order or order placement of the customer is an offer to conclude a contract.
HEINE may accept the offer of the customer by confirming the order.
(Terms of delivery)
2.2. The information on the delivery options and delivery deadlines is only binding if it is confirmed by HEINE in writing.
Technical descriptions in order confirmations are non-binding inasmuch as HEINE reserves the right to implement changes through technical improvements until the date of delivery. This applies particularly in the case of official requirements or legal regulations not foreseeable at the time of contract conclusion. The technical improvements in no way restrict the normal usability and the utilisation of the product. The customer can object to a change by technical improvements and withdraw from the agreement, if the modified product turns out not to be suitable for the intended use. In this case the customer will no longer be expected to adhere to the agreement.
Despite long-running tenders, HEINE is entitled to change or suspend the production, marketing or sale of its products, to change the specification of the products, to change or withdraw the use of any trademarks regarding its products and to change or withdraw any services that are offered in connection with the products.
2.3. HEINE delivers the goods ex works. All costs associated with the goods delivery, such as packaging, transport, insurance, taxes and customs duties are borne by the customer.
2.4. Any delays for which the customer is responsible shall entitle HEINE to extend its delivery deadlines accordingly. The same goes if HEINE does not receive an authorisation by relevant authorities in good time although HEINE filed the application for granting approval with the authorities in good time.
2.5. As a rule, all goods are delivered in one shipment. Partial deliveries are possible if they are appropriate in the circumstances and if their acceptance, after consultation with the customer, can be reasonably expected from the latter.
2.6. If the client refuses to accept the goods after an appropriate period of grace set by it, HEINE may assert its legal rights. In particular, HEINE may refuse fulfilment of the agreement and demand compensation for non-performance. HEINE is entitled to demand a flat rate of 0.5% of the agreed purchase price per started week from the start of delay in compensation.
If HEINE demands flat-rate compensation, the purchaser shall be entitled to prove that HEINE incurred no loss at all or loss that is significantly lower than the above flat rate.
Also in the event of the flat-rate compensation, proof of a higher loss and HEINE's legal claims (in particular replacement of additional expenditure, appropriate compensation, termination) shall remain unaffected; in these cases, a flat rate paid shall be credited to further financial claims.
(Transfer of risk)
2.7. The delivery is made ex works, which is the place of performance. On request and at the expense of the customer, the goods can be sent to a different location (shipment purchase). In case of shipment purchase, HEINE shall be entitled to freely determine the details of shipment (in particular transport company, route, packaging), unless otherwise agreed. In case of shipment purchase, the transfer of risk (risk of accidental destruction or deterioration) to the client occurs at the latest at the time of transfer of the goods to the freight forwarder, driver or other third party in charge of the shipment. (The start of the loading process is the critical point in time). This also applies if partial delivery is made or if HEINE has assumed other services (e.g. shipment or installation). If the shipment or the handover is delayed due to circumstances within the responsibility of the customer, the risk shall pass to the customer on the day on which the goods are ready for shipment, provided HEINE has notified the customer accordingly. Storage costs after transfer of risk shall be borne by the customer.
(Obligation for inspection and defect notification)
2.8. The customer undertakes to immediately examine the goods delivered once they are at its disposal and, if any defect is being discovered, to notify HEINE in writing within 14 days. Written form is ensured by fax or by e-mail.
If the defect is not reported, the goods shall be considered as approved by the customer, unless the defect was not identifiable at the time of inspection.
If such a defect appears at a later time, it must be reported within 14 days of being discovered. Otherwise, the goods are considered to be approved also with regard to this defect.
2.9. The liability of HEINE for compensation of loss and expenses, regardless on which legal grounds (e.g. breach of contract, neglect of duties in contract negotiations and prohibited action) is limited according to the provisions in this section as listed below.
a) HEINE is liable without limitation
- in the event of intent and gross negligence,
- in the event of culpable injury to life, body or health,
- in accordance with the regulations of product liability law as well as
- to the extent of a warranty for property features given by HEINE.
b) Furthermore, HEINE is liable for the actions of its company organs, legal representatives, employees and vicarious agents in the event of a negligent breach of key contractual obligations. Key contractual obligations are such whose fulfilment enable the correct execution of the agreement and on whose fulfilment the customer therefore relies and may rely (so-called cardinal obligations).
In the event of a minor negligent breach of the cardinal obligations by HEINE or its company organs, legal representatives, employees or vicarious agents, the liability of HEINE is limited in any event to contract typical and foreseeable damage. In addition to this, the liability of HEINE in these cases is, regardless of the legal grounds, always limited to an amount of EUR 10 million per damage event (in accordance with the current cover amount).
c) Any further liability of HEINE is ruled out.
d) With the exception of the cases under section a), HEINE is not liable for lost profits, missed savings, losses from third-party claims and other indirect and consequential damage.
2.10. In the event of a material defect, HEINE shall be obliged to rectify the defect or to deliver a replacement. The choice between these two options is at the discretion of HEINE. In the event of failure of the subsequent performance, i.e. the inability, unacceptability, refusal or inappropriate delay of the rectification or replacement delivery, the customer may withdraw from the agreement or reduce the purchase price appropriately.
In the event of replacement delivery, the customer has the obligation to return the defective object.
If a defect is the fault of HEINE, the customer may also demand compensation under the requirements set out under par. 2.9.
The warranty shall not apply if the customer modifies the object or engages a third party to modify it without prior approval from HEINE and if as a result, the defect rectification becomes impossible or unacceptably difficult. In any event, the customer must bear the additional costs of defect rectification arising from such modification.
2.11. If in individual cases, HEINE grants a warranty for the properties of goods, the following shall not be included by the warranty: damage arising from wear and tear, improper use, use of non-original HEINE parts and spare parts, intervention by persons not authorised by HEINE, as well as non-observance of instructions for use by the customer.
Any modification to HEINE devices with parts or additionally mounted parts, which do not comply with the original HEINE specification, will invalidate the guarantee and the warranty, inasmuch as the defect can be attributed to such modification or addition.
(Statute of limitations)
2.12. As regards warranty and liability, the legal statute of limitations shall apply.
2.13. Force majeure, which delays the performance of contractual obligations, such as shipping and acceptance of goods, or which makes such performance impossible or unreasonable, shall release both parties for the duration and within the scope of such force majeure from the obligation of performance.
Both parties undertake to inform the other party of the force majeure.
Despite the existence of force majeure, this agreement remains in force.
If an end to the force majeure is not foreseeable, both parties will attempt to adjust the agreement in accordance with the changed circumstances with prudence and in good faith. If an adjustment to the changed circumstances does not come about, the parties may take legal action.
(Retention of title)
2.14. The retention of title governed under this par. 2.13 serves to secure all existing and future claims from HEINE against the customer (including balance claims and claims from current accounts).
Items delivered subject to title retention shall remain the property of HEINE until the fulfilment of all claims that arise from the business relationship with the customer.
If the value of all delivered goods subject to title retention exceeds the value of all HEINE claims by more than 10%, HEINE will, at the customer's request, release a corresponding proportion of the delivered goods from title retention. In this case, HEINE has the right to select the goods which shall be released from title retention.
2.15. The customer is entitled to resell the goods under title retention in the course of ordinary and proper business transactions. If the customer resells the goods which are subject to title retention, it thereby automatically assigns all future claims from the resale against its customers (together with all secondary rights, including any balance claims) to HEINE as a security.
If the goods under title retention are resold together with other goods, and if no individual price has been agreed for the goods under title retention, the customer assigns the part of the total price to HEINE that corresponds to the HEINE's price for the goods under title retention.
The customer remains entitled to collect the claim also after assignment to HEINE. The right of HEINE to collect the respective claim itself thereby remains unaffected. However, HEINE undertakes not to collect the claim as long as the customer meets its payment obligations, does not default on payment, and as long as no application for insolvency proceedings has been filed against it and no other fault of its ability to perform is given. In the case of collection by HEINE, the former is entitled to demand information from the customer about the claims assigned to HEINE and their respective debtors, to provide all information necessary for collection and to hand over all associated documents. In the above case, HEINE is further entitled to demand that the customer notifies the debtors (third parties) of the assignment of the claims concerned.
Any resale is only permitted under the condition that the customer agrees its own retention of title with the purchaser without disclosing any retention of title by HEINE.
2.16. During the existence of the retention of title, the client may not grant a pledge on them or use them as collateral.
In the event of pledges, confiscations or other dispositions or interventions by third parties, in particular in case of enforcement measures, as well as in case of any damage or destruction of the goods, the customer must immediately notify HEINE. Following authentication of a justified interest by HEINE, the customer must provide HEINE with the necessary information and hand over the documents required to enable HEINE to assert its legal rights against the customer.
2.17. The customer shall store the goods, which are subject to retention of title, for HEINE free of charge and undertakes to treat such goods during the existence of the retention of title with care. If maintenance and inspection work is necessary, the customer must carry it out regularly at its own cost.
(Terms of payment, prices and invoicing)
2.18. HEINE will indicate to the customer within the invoice that such invoice is to be considered as accepted unless an objection is being raised by the customer within 21 days.
2.19. Unless stated otherwise, invoices are due for cash payment net within 30 days. Bank transfer or payment by bank cheque is also considered to be cash payment.
2.20. Unless expressly stated otherwise, the product prices are stated in EUR and without statutory VAT.
The product prices do not take into account the transport and packaging costs, insurances and other taxes, contributions, duties or fees that may be assessed or levied by an authority that declares to be in charge as regards this agreement.
2.21. HEINE may at its own discretion change the prices for the products subject to a deadline of 14 days if the change is reasonable under the circumstances for the other party to the agreement, taking into account the interests of the user.
During this term of fourteen (14) days, the customer may place orders that must not exceed the monthly average orders of the preceding three (3) months plus thirty (30) per cent.
f the customer requests a delivery date of more than one month after the price list comes into force, the new price list shall apply.
Customer orders already made remain unaffected by the changes.
2.22. HEINE is entitled to assign claims from deliveries and services for financing purposes.
2.23. For outstanding claims that have not been settled, HEINE shall be entitled to demand interest in the amount of eight (8) percentage points above the relevant base rate. In relation to the customer, HEINE reserves the right to prove and assert a higher loss from delay. HEINE reserves the right to calculate default interest to the amount as customary in the trade, but at least to the amount of the bank interest.
2.24. When reselling goods to third parties, the customer is not bound by the prices paid to HEINE, but can determine its own prices at its own risk.
2.25. The customer has a right to offset and retain only if its counter claims are legally established or if they are uncontested. The right to offset and to retain due to possible claims from defects or due to other reciprocal ("synallagmatic") claims shall not be limited.
In the event of complaints relating to defects, payments may only be retained by the purchaser to an extent that is proportionate to such defects, i.e. the pro-rata value of the retained payment may not be higher than the pro-rata value of the defective goods.
2.26. Any export from the Federal Republic of Germany is subject to the applicable export regulations. The export of goods to non-EU countries requires, as a rule, written approval from HEINE. Furthermore, the customer must ensure that it obtains any import and export licenses that are legally required.
(Confidentiality, data protection)
2.27. The customer undertakes to treat confidentially and not to make accessible to third parties the terms of the purchase agreement as well as all information and documents, which are not publicly accessible (hereinafter referred to as confidential information), which are made available to it in connection with the contractual relationship with HEINE. The confidentiality obligation shall continue to exist for a period of three (3) years after termination of the agreement. The customer may only use confidential information for the purposes of this agreement and, as requested by HEINE, must either return such information to HEINE immediately after processing enquiries and orders, or delete that information.
The customer must impose on its employees, who are involved with the purchase agreement, a corresponding obligation regarding secrecy of the confidential information.
2.28. Inasmuch as personal data are collected, processed and used in connection with the purchase agreement, any applicable legal provisions must be observed. HEINE and the customer shall ensure that all its employees involved in fulfilling the contractual obligations will follow the regulations on data protection.
2.29. In the course of data processing, all applicable legal provisions must be observed. In this context, both parties must consider that the possibility of unauthorised third parties obtaining access to data during transmission over the internet cannot be fully excluded .
III. Final provisions
3.1. If written form is agreed or intended under these GT&Cs, it shall also be observed by transmission by remote copy (fax) or email.
3.2. Should any of the individual clauses of these GT&Cs be ineffective, this shall not influence the effectiveness of the overall GT&Cs.
3.3. German law applies for these GT&Cs and all legal issues between HEINE and the customer. The application of UN purchasing law is ruled out.
3.4. Unless agreed otherwise, German shall be the negotiating and contractual language.
(Place of jurisdiction)
3.5. The place of performance and exclusive jurisdiction for all national and international disputes arising under the contractual relationship shall be the registered office of HEINE.