General conditions of delivery
Status: September 2012
Discontinued General terms of business
Status: November 1998
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1. Validity of the Stipulations
The following regulations shall apply for the deliveries and performances of Hilgenberg GmbH unless not otherwise agreed and conformed in writing. These conditions shall also apply for all future business connections without the necessity to confirm them once more. These conditions shall be regarded as accepted at the latest at the receipt of the goods or services. Modifications of these conditions shall only be valid if conformed in writing by Hilgenberg GmbH.
2. Offer and Formation of Treaty
Hilgenberg’s offers are not binding unless not, exceptionally, otherwise agreed in writing. Indications of weight and measurements as well as illustrations and drawings are non-committal. Orders and telegraphic, telephonic or oral amendments, changes or subsidiary arrangements shall only be binding if conformed in writing by Hilgenberg GmbH. Hilgenberg’s bills shall be regarded as equal to written confirmations. No sales assistant of Hilgenberg GmbH has any authority to make oral sub-agreements or assurances that go beyond the content of the written agreement or offer by Hilgenberg GmbH.
In case that the delivery is to take place after more than four month after conclusion of the sales contract, we will charge the prices that are valid on the day of delivery. From 1999 on, prices are quoted in EURO, if not otherwise stipulated, including VAT for deliveries inside Germany. Being the case that the delivery is to take place within four months after the conclusion of the sales agreement, the purchase price agreed on in the sales contract shall be valid. Prices are ex factory, excluding the packaging. If the goods are consigned carriage paid, this shall not mean that Hilgenberg GmbH is obliged to advance these costs.
4. Time of Delivery and Performance
Delivery periods shall principally be regarded as approximately and not binding, unless not otherwise agreed. Contractual penalties for delayed delivery are not permissible. Hilgenberg’s contractual obligations are subject to a correct and timely supply by its suppliers. Hilgenberg does not take any responsibility for delays in delivery and performance due to force majeure circumstances and due to events that substantially impede Hilgenberg’s delivery or make delivery impossible – including in particular strikes, lockouts, official orders, etc., and inclusive such events affecting its suppliers or sub-suppliers – including dates and deadlines that have been agreed on definitely. In cases of force majeure, Hilgenberg shall be entitled to extend the time stipulated for the fulfilment of the delivery or performance for the period of time during which such events prevent the fulfilment of its obligations plus a reasonable period of time; the customer in such an event is not entitled to cancel the contract. Hilgenberg shall be entitled to partial performance or delivery at any time. In the case of orders that are to be delivered on call, Hilgenberg shall be entitled to deliver the remaining stock after prior announcement if the purchaser did not take the delivery on the dates agreed.
5. Passing of risks
The place of delivery shall be the respective place of consignment. The place of payment is Malsfeld. The risk shall pass to purchaser in the moment that the goods are handed over to the person that performs the transport or as soon as they have left Hilgenberg’s warehouse for dispatch. In case that the dispatch proves to be impossible through no fault of Hilgenberg’s own, risk will pass to purchaser in the moment that the goods are announced to be ready for dispatch.
Payment should be made in full and without delay, not being the case that special conditions have been agreed on. On default of payment all legal consequences shall set in without separate reminder. Hilgenberg reserves particularly the right to charge interests at the respective rate of its bank. Apart from that, the total balance of the customer’s account shall become payable without delay irrespective of any periods allowed for payment. Hilgenberg shall be entitled, despite contrary stipulations of the purchaser, to set off any payments for pending debts that have not been paid yet; purchaser will be informed about the settlement. In case that costs and interests have already resulted from said default of payment, Hilgenberg shall be entitled to take payments into account first for the costs, then for the interests and finally for the primary obligation. Payment shall be deemed as effected only when the sum is at Hilgenberg’s disposal. In case payment is effected by cheque, it shall be deemed as effected only when the cheque has been cashed. In case that goods supplied by Hilgenberg are paid with one or several cheques and that in connection with the cashing of the cheque/cheques made out by the purchaser Hilgenberg hands over a bill of exchange (a so-called cheque-bill exchange), the purchaser is obliged to refund Hilgenberg any damages resulting from a possible further endorsement. Purchaser shall not be entitled to set off any claims that purchaser may have against Hilgenberg against any claim that Hilgenberg has against purchaser, including claims resulting from complaints, unless these claims have been ascertained timely or unless they are indisputably.
Packaging will be charged as cheaply as possible and is not returnable unless not otherwise agreed.
8. Special Models
In the case of models specially made, Hilgenberg reserves the right to modify the quantity agreed. In any case, the quantity produced has to be bought.
9. Measures and Tolerances
Measures and tolerances quoted are kept to as far as possible. Nevertheless, Hilgenberg reserves the right to divergences of +/- 10 %. Unless the allowances are not expressly stipulated, divergences within the usual scope in commerce shall be deemed permitted. Hilgenberg’s samples are always non-binding patterns. Hilgenberg does not take any guarantee that the goods supplied will be true to the samples.
The goods to be delivered have to be of average type and quality. The warranty period for technical devices and material is six months, commencing from the date of delivery. If Hilgenberg’s instructions of use and maintenance are not complied with, or if the products undergo any changes, or if parts are exchanged or if consumption materials are used that do not comply with the original specifications, the warranty will lapse. Complaints shall be asserted in writing without delay, but not later than 14 days after the reception of the goods, and in any case before processing, installing the goods or passing them to third parties. Otherwise, the goods shall be deemed accepted. Any return of the goods supplied shall only be permissible with Hilgenberg’s prior consent. In case of timely and legitimate complaints about defective goods, Hilgenberg shall have the right to choose between cancellation of the sales contract, abatement, repairs and substitution. In case that the repairs or the substitution fail, Hilgenberg shall grant cancellation of the contract or abatement, at its option. Any claims of the purchaser for compensation, disregarding its legal justification, shall not be permissible unless the damage has occurred due to gross negligence or deliberateness on Hilgenberg’s side. Only direct customer are entitled to warranties; these claims cannot be ceded to any third party.
Returns of goods supplied shall be effected at one’s own risk. In the case of goods being returned, Hilgenberg charges an administration fee of 20 % of the value of the goods, but not less than 10 €. Special models and special offers will not be taken back.
The goods shall be insured only if requested and paid for by purchaser.
13. Copyrights of Third Parties
If working plans supplied by purchaser for the realization of his order should violate any copyrights of third parties, purchaser shall be liable for any claims and shall indemnify and hold harmless Hilgenberg from and against any claims arising from such a breach of copyright.
Any documents provided shall not be disclosed to third parties or duplicated or used for purposes other than agreed.
15. Tools Provided
Tools shall in any case remain the property of Hilgenberg, also being the case that the purchaser agrees to pay for the tools entirely or partially. In case that purchaser puts tools for the realization of his order at Hilgenberg’s disposal, the title of said tools shall pass to Hilgenberg. Hilgenberg grants that these tools that purchaser has paid for entirely or partially will be held at disposal for future orders of purchaser until said tools are worn. This obligation shall be null and void if, over a period of two years after the conclusion of the last sales contract for the fulfilment of which said tools are necessary, no other contract will be concluded. If Hilgenberg is not in a position or not willing to execute an order that purchaser has placed in the period mentioned above comprising articles of the respective type and of usual quality for the execution of which said tools originally had been supplied, then Hilgenberg shall be obliged to hand out said tools to purchaser or to refund him for his tools, commensurate with the relevant wear and tear.
16. Reservation of title
The goods shall remain property of Hilgenberg GmbH (including all balance claims against purchaser arising now or in the future from current accounts by any legal justification). Purchaser shall be entitled to process and sell the goods on the following conditions: Processing and reconstruction shall be executed for Hilgenberg as producer of the goods, though without any obligation for Hilgenberg. For the case that Hilgenberg’s (co-) property lapses through connection, it is agreed that the (co-) property of the purchaser on the unified item shall pass on to Hilgenberg proportionately (amount of the bill). Purchaser shall store Hilgenberg’s (co-) property for free. Purchaser shall be entitled to sell the privileged property only within and according to the rules of customary business, and under the condition that purchaser is not in arrears and under the condition that any claims arising from resale have not been ceded beforehand to a third party. Claims arising from the sale and from other legal justification (insurance, tort) in respect to the privileged property (including all balance claims from the current account), purchaser cedes immediately by way of security at the value of the respective goods sold; this shall also apply for goods that have been processed or combined with other things. Hilgenberg revocably entitles purchaser to collect the claims ceded to Hilgenberg on his own account and name.
The direct debit authorization cannot be withdrawn unless purchaser fails to comply with his obligation to pay. In case that purchaser has resold the goods and fails to pay them due to a failure of payment by a third party, purchaser nevertheless shall be obliged to give Hilgenberg the name of any third party debtor and notify third party debtor thereof. Purchaser has to pay Hilgenberg immediately any sums that he has collected, insofar as Hilgenberg’s claims have fallen due. The pawning or the transfer of ownership of the privileged goods respectively the claims ceded by way of security shall not be admissible. Purchaser shall be obliged to notify Hilgenberg immediately in case of any infringements by third parties of the goods supplied under retention of title or of the claims ceded. Hilgenberg shall be obliged to release the claims transferred on its option, insofar as they exceed Hilgenberg’s claims to be secured by more than 25 % and insofar as they arise from deliveries fully paid.
17. Reservation of title in foreign business
In case that in foreign business the retention of title as agreed in no. 16 is not permissible with the same effect as under German law, the goods shall remain Hilgenberg’s property until all its claims resulting from the sales contract are settled. In case that this reservation of proprietary rights is not permissible with the same effect as under German law either, whereas the retention of further rights to the goods are permissible, then Hilgenberg shall be entitled to exercise all those rights permissible. Purchaser shall be obliged to co-operate in measures that Hilgenberg shall take in order to secure its right of ownership or, in substitution of it, any further right to the goods.
18. Construction Modifications
Hilgenberg reserves the right to modify its constructions at any time; nevertheless Hilgenberg shall not be obliged to execute such modifications as well on products already delivered.
19. Applicable Law, Court of Jurisdiction, Salvatorian Clause
Should any provision of theses conditions be null and void, nullified or unenforceable, the validity of the other provisions of these terms and conditions of trade will not be affected. In the place of invalid provisions, a valid provision shall be presumed to be agreed by the contracting parties, which shall come economically closest to the one actually agreed upon. The provisions of the sales contract shall be construed, and the performance thereof shall be enforced, in accordance with the laws of Germany. Place of jurisdiction shall be, as far as legally permissible, Melsungen. In case that Hilgenberg shall institute any proceedings, Hilgenberg shall either be entitled to do so at purchaser’s place of residence.