Standard Terms and Conditions of
Halfen GmbH and Halfen Vertriebsgesellschaft mbH
§ 1 General
(1) These Standard Terms and Conditions (“Standard Terms”) shall govern all business relations between Halfen GmbH or Halfen Vertriebsgesellschaft mbH, respectively, (hereinafter: “Halfen” or “we” or “us”) and the Customer if the Customer qualifies as an entrepreneur (Section 14 of the German Civil Code – BGB), a legal person under public law or a special fund under public law.
(2) These Standard Terms shall apply, without limitation, to contracts for the sale and/or supply by Halfen of movable things (hereinafter also referred to as “goods”) whether from our own production or purchased from our vendors (Sections 433, 651 BGB), as well as to any services we provide in connection with those goods. These Standard Terms in their current release shall apply as a framework agreement to any present or future contracts for the sale and/or supply of goods and the performance of services made with a given Customer, with no need for us to reference these Standard Terms for each individual contract.
(3) Our Standard Terms shall apply exclusively. No deviating, conflicting or supplementing standard terms and conditions of the Customer shall become part of a contract unless and to the extent we have expressly approved their applicability. This requirement of approval by Halfen shall apply in all events, including, for example, if we make a delivery to the Customer without making a reservation while having knowledge of the Customer’s standard terms and conditions.
(4) Individual understandings made with the Customer (including collateral understandings or additions or modifications) shall prevail over these Standard Terms in all events.
(5) Any legally relevant statements or notifications to be issued to us by the Customer after the conclusion of a contract (for example the setting of deadlines, the notification of defects or rescission or reduction of the purchase price) must be in writing to become effective.
(6) Any reference to the applicability of statutory provisions shall be for clarification only. Consequently, whether with or without such clarification, the statutory provisions shall apply except as directly modified or expressly contracted out in these Standard Terms.
§ 2 Conclusion and Performance of Contract
(1) Information we provide about our goods shall not be considered an offer in the legal sense but shall be non-binding and subject to change. This shall also hold if we have provided the Customer with catalogues, technical documentation (for example drawings, layouts, calculations, cost estimates, references to DIN standards), other product descriptions or documentation – whether in electronic or non-electronic form.
(2) The ordering of goods by the Customer shall be considered a binding offer for a contract.
(3) The contract and other understandings or guarantee statements shall only come into effect when we confirm the order in writing.
(4) We reserve the title and copyright to any execution plans (e.g., layouts, outlines and structural analysis documentation) produced by us that concern an offer or contract order.
(5) The Customer may not use any know-how included in execution plans unless for the purposes assumed in the contract.
(6) Insofar as we provide goods on the basis of drawings, models, samples, instructions or other annexes to an order furnished by the Customer, the Customer warrants that the production and provision of the goods ordered does not infringe any intellectual property rights or copyrights. The Customer shall hold us free and harmless against any claims of third parties without undue delay if the production or provision of the goods does infringe any intellectual property rights or copyrights of a third party in violation of sentence 1. If a third party should hold us liable for infringement of intellectual property rights or copyrights, we have the right against the Customer to discontinue the production and provision and to request compensation for the costs accrued unless the Customer procures for us within a reasonable period of time all rights necessary for Halfen to perform the contract. The provisions contained in § 3 paragraph 2 and § 4 shall apply.
(7) Except as otherwise agreed in writing, we have the right to destroy any models, samples, drawings, instructions and other annexes to an order after six months from the performance of a contract, unless the circumstances make it obvious to us that the Customer is legitimately interested in a return of said annexes to an order.
§ 3 Time for Delivery and Default in Delivery
(1) The time for delivery will be agreed on for each specific order or announced by us when we accept an order.
(2) Notwithstanding our rights based on default in acceptance, any times for delivery or dates of delivery shall be extended by the period of time for which our performance is impeded by the Customer’s default in relation to us or by the Customer’s failure to comply with duties of assistance (for example failure to procure the required official confirmations or permits or failure to deliver the required execution planning or failure to make the advance payment).
(3) If we cannot meet binding times for delivery for reasons for which we are not responsible (non-availability of performance), we will inform the Customer without undue delay, notifying the expected new time for delivery. For purposes of the foregoing, an event of non-availability of performance for which we are not responsible shall include, without limitation, our own late supply by our vendor if we have entered into a congruent hedging transaction (i.e., there exists a delivery contract between us and our vendor on the date of the conclusion of the purchase contract with the Customer, which will, under normal circumstances, enable us to serve the Customer with the same certainty that has been promised to us), provided that we have not furnished an additional guarantee regarding the timely delivery. Our statutory rights of rescission and cancellation and the statutory provisions regarding the unwinding of a contract if the claim for performance is excluded (e.g., if performance or rectification is either impossible or cannot reasonably be required of us), shall remain unaffected. The Customer’s rights of rescission and cancellation under § 8 of these Standard Terms shall remain unaffected as well.
(4) The statutory provisions shall apply as to the occurrence of default in delivery on our side.
§ 4 Delivery, Passing of Risk, Acceptance, Default in Acceptance
(1) Delivery shall be ex works, and this shall also be the place of performance unless otherwise agreed. At the request and for the account of the Customer, the goods will be shipped to another point of destination (sales per dispatch – “Versendungskauf”). Except as otherwise agreed, we have the right to decide the form of shipment (including, without limitation, the carrier, route of shipment, packing) in good faith.
(2) Partial deliveries shall be allowed to the extent we may reasonably expect the Customer to accept such partial deliveries, except as otherwise agreed.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are made available for transit ex works. In the case of a sales per dispatch (Versendungskauf), however, the risks of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Customer when the goods have been handed over to the forwarding agent, the carrier or another person or institution designated for performing the shipment.
(4) If the Customer is in default of acceptance or fails to perform an act of assistance for reasons for which the Customer is responsible or if delivery by us is delayed for other reasons for which the Customer is responsible, we have the right to claim compensation for the resulting damage including any additional costs (e.g., storage costs).
§ 5 Prices and Terms of Payment
(1) Except as otherwise agreed, our current price list as revised at the time of conclusion of a contract shall apply, and prices shall be ex works and plus VAT at the statutory rate.
(2) In the case of a sale per dispatch (§ 4 paragraph 1), the Customer shall bear the costs for shipping ex works and the costs of any transport insurance requested by the Customer. The Customer shall bear any customs duties, charges, taxes and other public levies.
(3) Any swap packing (euro-palettes, crates, etc.) handed over for use in transport shall remain our property and shall be for the Customer’s temporary possession only. The Customer shall owe Halfen the exchange or return of such swap packing.
(4) The purchase price shall be paid within 30 days after the due date and receipt of the invoice, without deduction of any discount.
(5) The partial payments for goods delivered in partial deliveries shall be due from invoicing and passing of the risk of the goods.
(6) The Customer is in default if he does not perform within 30 days after the due date and receipt of the invoice;. During default, interest on the sum due for payment accrues at the statutory rate of default interest. We reserve the right to claim additional default damages. In relation to merchants (Kaufleute), our right to claim interests from the due date (Section 353 of the German Commercial Code – HGB) shall remain unaffected.
(7) In the case of several outstanding payments from the Customer, we have the right to set off payments first against the earlier receivables. If costs and interests have already accrued, we have the right to set off payments first against interest, then against costs and finally against the receivable.
(8) The Customer shall have rights of set-off or retention only if and when the Customer’s claim has been awarded with final and binding effect or if and when the Customer’s claim has not been contested by us.
(9) If it becomes evident after the conclusion of the contract that our claim to the purchase price is jeopardized by lack of solvency of the Customer (e.g., if a request for opening insolvency proceedings against the Customer is filed), the law allows us to refuse performance and – after setting a deadline as may be necessary – to rescind the contract (Section 321 BGB).
§ 6 Reservation of Title
(1) We reserve our title to the delivered goods up until all of our current and future claims under the contract and under a standing business relationship between us and the Customer (secured claims) are fully paid.
(2) Until the secured claims are paid in full, no goods under reservation of title may be pledged to third parties or transferred by way of security. In the case of seizure or other interferences, the Customer must identity our title to the goods to the executing official or to other third parties. The Customer shall give us instant written notice of any third-party interference with the goods owned by us.
(3) The Customer may resell and/or process any goods under reservation of title in the course of ordinary business. In this case, the following provisions shall apply.
(a) Our reservation of title shall extend to the full value of any products created through processing of or combination with or connection to our goods, and we shall be considered the producer of the newly created products. If a third party retains title after such processing, combination or connection of the goods, we shall hold joint title relative to the invoice values of the goods processed, combined or connected. In all other respects, the newly created products shall be subject to the same provisions as the goods delivered under reservation of title.
(b) The Customer hereby assigns to us by way of security, and we accept the assignment of, any claims against third parties that arise by reselling the goods or the newly created product, either wholly or at the amount of our possible fraction of title pursuant to the foregoing paragraph. The duties of the Customer set forth in § 6 paragraph 2 shall also apply regarding the claims assigned.
(c) The Customer remains authorized to collect the claim in addition to us. We agree that we will not collect the claim providing that the Customer meets its payment obligations towards us, does not get into default and no request for opening of insolvency proceedings is been filed and no other deficiency regarding the Customer’s solvency arises. If any of these conditions does occur, we may request that the Customer disclose the assigned claims as well as the corresponding debtors to us and provide us with all information required for collection, including handing over all relevant documentation and notifies the debtors (third parties) of the assignment. In this event, we reserve the rights to rescind the Customer’s authorisation to collect the claim and to disclose the assignment to third parties.
(4) Insofar as the realisable value of the security exceeds our claims by more than 10%, we will, at the Customer’s request, release such securities as we choose at our discretion.
§ 7 Liability for Defects
(1) Except as hereinafter otherwise provided, the statutory provisions shall apply to the Customer’s rights if goods delivered have defects in material or title (including wrong delivery or short delivery as well as improper installation or inadequate installation instructions) or if services are deficient. The special statutory provisions on the ultimate delivery of goods to a consumer (recourse of the supplier pursuant to Sections 478, 479 BGB) shall remain unaffected in all cases.
(2) The written agreement regarding the quality of the goods or services forms the primary basis of our liability for defects. Inter alia, any product or service specifications that are part of a particular contract qualify as agreements regarding the quality of the goods or services, regardless of whether the specifications are provided by the Customer, the producer or us.
(3) In the absence of an agreement on the quality of the goods, the statutory rule shall control whether or not a defect has occurred (Section 434 paragraph 1 sentences 2 and 3 BGB).
(4) As a condition for the Customer to claim a defect regarding the goods, the Customer must have complied with its statutory duties of inspection and notification (Sections 377, 381 HGB). If a defect is found during inspection or later, the Customer shall give us written notice without undue delay. Regardless of this duty of inspection and notification, the Customer shall give us written notice of obvious defects (including wrong delivery and short delivery) without undue delay but no later than within two weeks of delivery, whereas the sending of the notification within the required time period shall be sufficient to meet the deadline. If the Customer does not properly inspect the goods and/or notify a defect, our liability for the defect that has not been notified shall be excluded.
(5) If the goods or services delivered are defective, the Customer may opt whether we shall cure the defect by eliminating the defect (rectification) or by providing a good that is free from defects or re-performing the service (substitute delivery), without prejudice to our right to refuse the chosen way of subsequent performance in accordance to the statutory provisions.
(6) The Customer shall allow us the required time and opportunity to carry out the subsequent performance owed and in particular the Customer will hand over the objected goods for examination; or else we will be released from liability for any consequences thereof. In the case of substitute delivery, the Customer shall return the defective good in accordance with the statutory provisions.
(7) Any expenditure required for purposes of examination and subsequent performance, including, without limitation, any costs of transit, travel, work and material, shall be for our own account if there is an actual defect.
(8) In urgent cases, for example if operational safety is affected or for preventing unreasonable losses, the Customer has the right to eliminate the defect on its own and to claim compensation from us for the objectively required expenditure. The Customer shall inform us without undue delay and if possible in advance. The Customer is not entitled to eliminate a defect on its own in cases where we would have a right to refuse curing the defect in accordance with the statutory provisions.
(9) If curing the defect has failed or if a reasonable period of time specified by the Customer to allow curing the defect has expired to no avail or may be dispensable according to the statutory provisions, the Customer may either rescind the purchase contract or reasonably reduce the purchase price. The Customer has no right of rescission if the defect is insignificant.
(10) Any claims of the Customer for damages or compensation for lost expenditures shall be governed by § 8.
§ 8 Other Liability
(1) We shall be liable for damages without limitation in cases of intent and gross negligence, injury to life, body or health, as well as for fraudulent non-disclosure of defects and for breach of guarantees. In case of a limited guarantee, however, we shall only be liable as set forth in said guarantee.
(2) Subject to the provisions in § 8 paragraph 1, our liability shall be limited to compensation for the foreseeable, typical damage in the case of a simple negligent breach of a material contractual obligation, i.e., an obligation which if performed renders the proper performance of the contract possible in the first place and on compliance with which the other party to the contract therefore commonly relies and may reasonably rely.
(3) In all other respects, our liability per damage event shall be limited to the greater of 1.5 times the net price of the affected performances or a maximum sum of EUR 1,500,000. However, our liability for all damages arising from each contract shall be limited in the aggregate to the greater of 1.5 times the net price of all performances subject to said contract or a maximum sum of EUR 3,000,000.00.
(4) In all other cases, our liability under any theory of law shall be excluded.
(5) Notwithstanding, our liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected hereby.
(6) The provisions contained in § 8 paragraph 1 to 5 shall apply mutatis mutandis to the liability of the owner, the bodies, executives, staff or other vicarious agents of Halfen.
(7) The Customer may not rescind or cancel the contract for a breach of an obligation other than a breach that comprises a defect unless we are responsible for this breach of an obligation.
(8) In all other respects, the statutory prerequisites and legal consequences shall apply.
§ 9 Statute of Limitations
(1) In derogation from Section 438 paragraph 1 no. 3 BGB, the general period of limitation for claims attaching to defects in material or title for used goods shall be one year from delivery.
(2) In all other cases, the statutory periods of limitations shall apply (Sections 438, 479, 634a BGB).
(3) The foregoing periods of limitation under the law of purchase and sale shall also apply to contractual and non-contractual damage claims of the Customer that are due to a defect in the goods or services unless the application of the standard statutory period of limitation (Sections 195, 199 BGB) would individually result in a shorter period of limitation.
(4) The periods of limitation under the German Product Liability Act shall remain unaffected in all events.
(5) In all other respects, claims for damages by the Customer shall be governed exclusively by the statutory periods of limitation.
§ 10 Applicable Law and Place of Jurisdiction
(1) These Standard Terms and any contractual relations between us and the Customer that fall under these Standard Terms pursuant to its § 1 paragraph 2 shall be governed by the laws of the Federal Republic of Germany. Provisions on the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
(2) If the Customer is a merchant (Kaufmann) within the meaning of the German Commercial Code, a legal person under public law or a special fund under public law, the exclusive – national or international – place of jurisdiction for any controversies resulting from or related to the contractual relationship shall be Düsseldorf. However, we reserve the right to bring an action at the Customer’s general place of jurisdiction.
[As revised in September 2012]