General Terms and Conditions of the company höchsmann maschinen GmbH (hereinafter referred to as höchsmann) for commercial customers - as of: April2021
1. General principles
All business relations between höchsmann and the commercial customer shall be exclusively based on the General Terms and Conditions of Sale and Delivery of höchsmann. The customer's general terms and conditions shall not form part of the contractual relationship. Höchsmann shall retain title to all cost estimates, drawings and other documents. Documents must not be made accessible to third parties. Offers from höchsmann are subject to change and non-binding.
Orders placed by the customer shall be binding upon the customer. The delivery or invoice shall be deemed to be the order confirmation, unless indicated otherwise in writing by höchsmann. If the customer is a merchant, only written confirmation by höchsmann shall be authoritative in relation to the content of confirmations and agreements, unless the customer objects without delay.
3. Prices and payment
Unless otherwise agreed in writing, the prices for new machines / goods shall be ex works of the manufacturer, the prices for used machines / goods provided shall be ex-site at the time of conclusion of the contract and shall not include disassembly, packaging, freight, customs, postage, insurance, expenses, etc. Value-added tax shall be charged separately at the applicable statutory rate. Unless otherwise agreed in writing, payment of the invoice amount must be made to one of höchsmann’s bank accounts, without deduction in advance, within 5 working days prior to the delivery or performance. In the event of non-compliance with the payment deadlines or in the event of circumstances which become known to the customer after conclusion of the contract and which reduce the customer's creditworthiness from a banking point of view, all claims shall become due for payment immediately after a reminder has been issued. In this case, höchsmann shall be entitled to only carry out outstanding deliveries and services against advance payment or provision of security or to withdraw from the contract after the expiry of a reasonable grace period. The withholding of payments as well as the offsetting of claims against claims of the customer from other transactions is only permissible insofar as these claims have been acknowledged by höchsmann or have been determined without further legal recourse.
4. Delivery date
Scope of delivery and delay Agreements regarding delivery dates and deadlines shall be deemed to merely be non-binding agreements unless höchsmann has expressly given a binding assurance in writing. The delivery period shall be deemed to have been complied with if the item being delivered has left the warehouse of höchsmann or the customer has been notified that the item is ready for shipping by the time the delivery period expires. If unforeseen obstacles, labour disputes and force majeure events beyond the control of höchsmann or obstacles within the manufacturer's sphere of responsibility occur, the delivery period shall be extended accordingly. This shall also apply to previously-existing delays. In the case of a fixed delivery date, if the customer incurs damages due to a delay in delivery for which höchsmann is responsible, the customer shall be entitled to compensation to the exclusion of all further claims. This shall amount to a total of 2.5% of for each full week of the delay for which we are responsible, but shall not exceed 5% of the value of the order or the part of the order to which the delay relates. In the event of a delay in delivery by höchsmann, the customer may withdraw from the contract after stipulating a reasonable grace period, which must be combined with an express declaration that they will refuse to accept the performance after the expiry of this grace period, if the performance is not rendered within this grace period. Further claims, in particular claims for damages, shall be excluded in this case. If the acceptance of performance is delayed due to circumstances for which the customer is responsible, they shall be obliged to pay the storage costs incurred. This shall amount to at least 0.5% of the invoiced amount for the non-accepted performance per month, calculated from the 15th day after they were notified that the item was ready for shipping.
5. Transfer of risk
The risk shall pass over to the customer once the delivery item is handed over handover to the carrier or other transporter. However, in the case that it is shipped using höchsmann's own means of transport, the risk shall pass over to the customer no later than the point at which the item leaves höchsmann’s premises, or, in the case of direct delivery, the point at which it leaves the premises of the manufacturer’s works. Höchsmann will insure the cargo will insure the cargo against breakage, damage in transit, fire damage and water damage at the request and expense of the customer. If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the third day after the customer is notified that the goods are ready for shipment. The customer shall be obliged to accept the performance unless there are significant defects that they cannot be expected to accept. Partial performance shall be permissible.
6. Retention of title
höchsmann shall retain title to all delivery items until all claims to which it is entitled from the business relationship with the customer have been paid in full. In the case of a running account, all reserved property shall serve as security for the overall claim. If the value of the securities assigned höchsmann exceeds the claims against the customer by more than 25%, höchsmann shall be obliged to release appropriate securities, as selected by höchsmann. The customer may neither pledge the goods subject to retention of title by höchsmann nor assign them by way of security. The customer shall immediately notify höchsmann in writing of any pledge, seizure or other disposal by third parties. In the event of a breach of contract by the customer, in particular, in the event of default in payment, höchsmann shall be entitled to take back the delivered item and the customer shall be obliged to surrender it immediately. The assertion of the right to take back or the pledging of the delivered item by höchsmann shall not be deemed a withdrawal from the contract unless höchsmann expressly declares it is withdrawing from the contract. Until the delivery item has been paid for in full, höchsmann shall entitled to insure it against fire, water and other damage at the customer's expense, unless the customer proves that it has taken out such insurance and höchsmann is entitled to make direct claim against the insurance company.
7. Provisions on cure
Höchsmann shall be liable for defects in the delivery to the exclusion of all further claims, as laid out below: The cure period for new products sold to companies shall be 12 months from the transfer of risk. In the case of used products, cure is generally excluded unless höchsmann expressly undertakes subsequent performance. Used machines shall only be delivered. along with their remaining accessories in the condition in which they are at the time of conclusion of the contract. Any liability for obvious and hidden defects shall also be excluded if the machine has not been inspected by the purchaser beforehand, unless höchsmann has concealed a defect from the customer intentionally or as the result of gross negligence. This does not apply to warranted characteristics. Assurances shall only be effective if they are given in writing. Sales representatives of höchsmann or commercial agents are not entitled to give assurances. Verbal statements as well as statements in documents and brochures do not contain any assurances. They only serve to specify the performance. This also applies to samples, specimens, DIN regulations, performance descriptions and other information on the quality of the delivery item. Technical descriptions, layouts, brochures or other documents generally document the original fittings or options for fittings of the machine at the time of the initial delivery and do not represent an assurance of characteristics, as the current fittings of the used machine may deviate from this. Such a deviation therefore does not constitute a defect relevant under the law of sales. No liability shall be assumed for damage caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, faulty or negligent handling of the delivery item, in particular with regard to the existing operating instructions, use of unsuitable equipment and replacement materials or for wear and tear within the scope of contractual use. The wear and tear of wearing parts does not constitute a defect in the delivered item. In the event of a defect, höchsmann shall be entitled to choose between replacement delivery or subsequent performance. In case of failure of the supplementary performance or in case of a genuine rejection of the supplementary performance the customer shall have the right to reduce the price or withdraw from the contract, subject to the exclusion of all other rights. höchsmann must be notified of any transport damage without delay. The customer must take care of all the necessary formalities with the transporter. In particular, it shall be obliged to record all necessary evidence to safeguard the rights of withdrawal vis-à-vis third parties. Defects in a partial delivery do not entitle the customer to reject the remainder of the delivery, unless the customer cannot prove that acceptance of a partial delivery is unreasonable for it. Insofar as the customer modifies or processes the delivered item, any obligation of höchsmann to provide subsequent performance shall cease.
8. Obligation to give notice of defects
The customer is obliged to examine the delivered goods immediately after receipt in a proper manner and at its own expense and to give notice of any defects, shortfalls in quantity or incorrect deliveries that are not capable of being approved. Notification of hidden defects must be given upon discovery, without delay. Notification of apparent defects must be given within seven days of delivery.
höchsmann shall only be liable for its own grossly negligent breaches of duty and for intentional or grossly negligent breaches of duty on the part of a legal representative or vicarious agent. Any further liability on the part of höchsmann is excluded.
10. Obligation to perform
The impossibility of fulfilling of höchsmann’s obligations to perform shall be subject to proper, complete and timely delivery on the part of its suppliers. If it becomes impossible for höchsmann to provide the service due to circumstances for which höchsmann is not responsible, the customer shall be entitled to withdraw from the contract. In the event of partial impossibility or partial inability, the customer's right to withdraw from the contract shall only apply to the partial performance, unless the customer can prove that they have no interest in the partial performance. All further claims of the customer shall be excluded, in accordance with section 9.
11. Financing / leasing
höchsmann does makes no representation that the customer will be able to get the financing / lease financing they intended to. If the financing institution refuses to finance the transaction or if an planned leasing contract is not concluded for reasons for which höchsmann is not responsible, the customer shall still be obliged to fulfil the contract. If the customer does not accept the performance of höchsmann, section 12 shall apply mutatis mutandis.
12. Refusal of performance
If the customer does not accept the performance of höchsmann, the customer shall be obliged to pay 25% of the order value to höchsmann as liquidated damages. The customer reserves the right to prove lower damages.
13. Severability clause
In the event of the invalidity of individual provisions of the General Terms and Conditions, the validity of the remaining provisions shall not be affected. höchsmann and the customer shall be obliged to replace the invalid provision with one that corresponds to it as closely as possible. If this is not possible, statutory provisions shall apply insofar as they have not been excluded by these General Terms and Conditions.
14. Assurances / amendments to the General Terms and Conditions
Assurances as well as amendments to the General Terms and Conditions of höchsmann shall only be effective if they are agreed in writing by a managing director or an authorised signatory of höchsmann.
15. Place of jurisdiction and performance
Unless otherwise agreed in writing, the place of performance shall be the registered office of höchsmann maschinen GmbH in Langen - Hesse. The place of jurisdiction for all disputes between höchsmann and the customer shall be 63225 Langen, provided the customer is a merchant. The law of the Federal Republic of Germany shall apply.