These general terms and conditions of sale (these „Terms“) are the only terms which govern the sale of the goods („Goods”) and services („Services“) (collectively, „Supplies“) by Hengstler GmbH („Hengstler“ or „Supplier“) to the purchaser of such Goods and or Services („Purchaser“).Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Supplies covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. If the Supplies are purchased through Supplier’s European Union-based e-commerce website, then the additional terms in Schedule A shall also apply to such Supplies.
1. The scope of deliveries and/or services (hereinafter referred to as „Supplies“) shall be determined by the written declarations of both Parties. General terms and conditions of the Purchaser shall apply only if and when expressly accepted by the supplier or the provider of services (hereinafter referred to as „Supplier“) in writing.
2. The Supplier herewith reserves any industrial property rights and/or copyrights pertaining to its cost estimates, drawings and other documents (hereinafter referred to as „Documents“). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without undue delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier may rightfully transfer Supplies.
3. The Purchaser shall have the non-exclusive right to use standard software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Purchaser may make one back-up copy without express agreement.
4. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.
1. Prices shall be ex works and exclude packaging; value added tax shall be added at the then applicable rate.
2. If the Supplier is also responsible for assembly or erection and unless otherwise agreed, the Purchaser shall pay the agreed remuneration and any incidental costs required, e. g. travel costs, costs for the transport of tools and equipment, and personal luggage as well as allowances.
3. Payments shall be made free Supplier’s paying office.
4. The Purchaser may set off only those claims that are undisputed or against which no legal recourse is possible.
1. Items pertaining to the Supplies („Retained Goods“) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 20 %, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.
2. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
3. The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
4. Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.
1. Times set for Supplies can only be observed if all Documents to be supplied by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.
2. If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike or lockout, such time shall be extended accordingly.
3. If the Supplier is responsible for the delay (hereinafter referred to as „Delay“) and the Purchaser demonstrably suffered a loss therefrom, the Purchaser demonstrably suffered a loss therefrom, the Purchasermay claim a compensation as liquidated damages of 0.5 % for every completed week of Delay, but in no case more than a total of 5% of the price of that part of the Supplies which because of the Delay could not be put to the intended use.
4. Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence, or due to injury of life, body or health. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
5. At the Supplier’s request the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.
6. If dispatch or shipment is delayed at the Purchaser’s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
2. The risk shall pass to the Purchaser if dispatch, shipping, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.
Unless otherwise agreed in writing, assembly/erection shall be subject to the following provisions:
1. The Purchaser shall provide at its own expense and in good time:
2. Before the erection work starts, the Purchaser shall make available of its own accord any information required concerning the location of concealed electric power, gas and water lines or of similar installations as well as the necessary structural data.
3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly/erection and any preparatory work must have advanced to such a degree that assembly/erection can be started as agreed and carried out without interruption. Access roads and the assembly/erection site itself must be level and clear.
4. If assembly, erection or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
5. The Purchaser shall attest to the hours worked by the erection personnel towards the Supplier at weekly intervals and the Purchaser shall immediately confirm in writing if assembly, erection or commissioning has been completed.
6. If, after completion, the Supplier demands acceptance of the Supplies, the Purchaser shall comply therewith within a period of two weeks. In default thereof, acceptance is deemed to have taken place. Acceptance is also deemed to have been effected if the Supplies are put to use, after completion of an agreed test phase, if any.
The Purchaser shall not refuse to receive Supplies due to minor defects.
The Supplier shall be liable for defects as to quality („Sachmängel“, hereinafter referred to as „Defects“,) as follows:
1. All parts or services where a Defect becomes apparent within the limitation period shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge irrespective of the hours of operation elapsed, provided that the reason for the Defect had already existed at the time when the risk passed.
2. Claims based on Defects are subject to a limitation period of 12 months. This provision shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (defects of a building) German Civil Code („BGB“), as well as in cases of injury of life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The legal provisions regarding suspension of expiration („Ablaufhemmung“), suspension („Hemmung“) and recommencement of limitation periods remain unaffected.
3. The Purchaser shall notify Defects to the Supplier in writing and without undue delay.
4. In the case of notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defect occurred. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect occurred is justified beyond doubt. Unjustified notifications of Defect shall entitle the Supplier to have its expenses reimbursed by the Purchaser.
5. The Supplier shall first be given the opportunity to supplement its performance („Nacherfüllung“) within a reasonable period of time.
6. If supplementary performance is unsuccessful, the Purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. XI.
7. There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent
handling, excessive strain, unsuitable equipment, defective workmanship, inappropriate foundation soil or from particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences
thereof shall be likewise excluded.
8. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the Purchaser’s branch office, unless doing so complies with the intended use of the Supplies.
9. The Purchaser’s right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions
governing claims based on Defects. Moreover, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
10. Furthermore, the provisions of Art. XI (Other Claims for Damages) shall apply in respect of claims of damages. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. VIII, based on a Defect, shall be excluded.
1. Unless otherwise agreed, the Supplier shall provide the Supplies free from third parties’ industrial property rights and copyrights (hereinafter referred to as „IPR“) with respect to the country of the place of destination. If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR with respect to the Supplies made by the Supplier and then used in conformity with the contract, the Supplier shall be liable to the Purchaser within the time period stipulated in Art. VIII No. 2 as follows:
2. Claims of the Purchaser shall be excluded if it is itself responsible for the infringement of an IPR.
3. Claims of the Purchaser shall also be excluded if the infringement of the IPR is caused by specifications made by the Purchaser, to a type of use not foreseeable by the Supplier or to the Supplies being modified by the Purchaser or being used together with products not provided by the Supplier.
4. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
5. Where other defects in title occur, Art. VIII shall apply mutatis mutandis.
6. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. IX, based on a defect in title, shall be excluded.
1. To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Purchaser’s claim for damages shall, however, be limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
2. Where unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, the Supplier shall have the right to cancel the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.
1. Any claims for damages and reimbursement of expenses the Purchaser may have (hereinafter referred to as „Claims for Damages“), based on whatever legal reason, including infringement of duties arising in connection with the contract or tort, shall be excluded.
2. The above shall not apply in the case of mandatory liability, e. g. under the German Product Liability Act („Produkthaftungsgesetz“), in the case of intent, gross negligence, injury of life, body or health, or breach of a condition
which goes to the root of the contract („wesentliche Vertragspflichten“). However, Claims for Damages arising from a breach of a condition which goes to the root of the contract shall be limited to the foreseeable damage which is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
3. To the extent that the Purchaser has a valid Claim for Damages according to this Art. XI, it shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. VIII No. 2. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.
1. If the Purchaser is a businessperson, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier’s place of business. However, the Supplier may also bring an action at the Purchaser’s place of business.
2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to continue the contract.
The Purchaser shall not export, re-export or transfer directly or indirectly, any Products or technical data received from the Supplier to any country or user where such export, re-export or transfer is restricted, either by the laws applicable in the Purchasers own country or by the laws of the United States of America, without first obtaining any required governmental or similar license, authorization, certification or approval. If the Purchaser resells or otherwise disposes of any Products or technical data purchased hereunder, it will comply with any export restrictions applicable.
HENGSTLER GMBH E-COMMERCE TERMS AND CONDITIONS OF SALE
BY PLACING AN ORDER FOR GOODS OR SERVICES FROM HENGSTLER’S E-COMMERCE WEBSITE, PURCHASER AFFIRMS THAT IT IS OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND ACCEPTS AND IS BOUND BY THESE TERMS AND CONDITIONS. PURCHASER AFFIRMS THAT (i) IF PLACING AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, PURCHASER HAS THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS OR (ii) IF PLACING AN ORDER ON PURCHASER’S OWN BEHALF, PURCHASER IS DOING SO FOR PURPOSES RELATED TO ITS TRADE, BUSINESS OR PROFESSION.
PURCHASER MAY NOT ORDER OR OBTAIN GOODS OR SERVICES FROM HENGSTLER’S E-COMMERCE WEBSITE IF PURCHASER (i) DOES NOT AGREE TO THESE TERMS, (ii) IS NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH HENGSTLER, (iii) FOR PURPOSES NOT RELATED TO PURCHASER’S TRADE, BUSINESS OR PROFESSION OR (iv) IS PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These e-commerce terms and conditions of sale (these „E-Commerce Terms“) apply to the purchase and sale of goods and services („Supplies“) by Hengstler through shop.hengstler.de or any European Union-based website (each referred to as the „Site“). These E-Commerce Terms are subject to change by Hengstler without prior written notice at any time, in its sole discretion. Purchaser should review these E-Commerce Terms prior to purchasing any Supplies that are available through the Site; continued use of the Site will constitute Purchaser’s acceptance of and agreement to such changes.
These E-Commerce Terms are an integral part of the General Terms and Conditions of Sale (available at https://www.hengstler.de/en/service/terms_conditions.php), and any applicable website terms of use that apply to use of the Site. Purchaser should also carefully review Hengstler’s Data Privacy Policy (available at https://www.hengstler.de/en/company/data_privacy.php) before placing an order for Supplies through the Site.
SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS.
(a) Hengstler will arrange for shipment of the Supplies to Purchaser. Purchaser should check the individual product page for specific delivery options. Purchaser will pay all shipping and handling charges unless otherwise specified in the order confirmation.
(b) Delivery shall be CIP (Incoterms 2010). Title and risk of loss shall pass to Purchaser when Supplies are delivered to the first carrier. Shipping and delivery dates are estimates only and cannot be guaranteed; Hengstler is not liable for any delays in shipments.
PRICES AND PAYMENT TERMS.
(a) All prices, discounts, and promotions posted on the Site are subject to change without notice. The price charged for Supplies will be the price advertised on the Site at the time the order is placed, subject to the terms of any promotions or discounts that may be applicable. The price charged will be clearly stated in the order confirmation email. Price increases will only apply to orders placed after the time of the increase. Hengstler strives to display accurate price information, however occasionally there may be inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. Hengstler reserves the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b) Purchaser represents and warrants that (i) debit card, credit card or other payment information supplied to Hengstler is true, correct and complete, (ii) Purchaser is duly authorized to use such information for the purchase, (iii) charges incurred by Purchaser will be honored by its debit or credit card company, or other payment service provider, and (iv) Purchaser will pay all charges advised by Hengstler at the time of purchase, including shipping and handling charges and all applicable taxes.
CANCELLATION. Purchaser agrees that its order is an offer to buy, under these E-Commerce Terms, all Supplies listed in an order. All orders must be accepted by Hengstler. Hengstler may choose not to accept orders at its sole discretion, even after sending Purchaser a confirmation email with an order number and details of the items ordered. Orders may not be canceled or rescheduled without Hengstler’s written consent and are subject to cancellation or reschedule charges determined by Hengstler.
SUPPLIES NOT FOR RESALE OR EXPORT. Purchaser represents and warrants that it is buying Supplies from the Site for its own use only, and not for resale or export. The use, sale, reexport, delivery or retransfer, directly or indirectly, of the ordered Supplies, in or to any activities related to the design, production, use, or stockpiling of chemical, biological or nuclear weapons or missiles is strictly prohibited. Purchaser further represents and warrants that all purchases are intended for final delivery to locations within the European Union.
DESIGN CHANGES. Hengstler and its suppliers reserve the right to change product design or specifications for those Supplies available on the Site at any time without notice.
PRIVACY. Hengstler’s Data Privacy Policy, accessible through www.hengster.de and/or the Site, governs the processing of all personal data collected from Purchaser in connection with the purchase of Supplies through the Site.
