Standard Terms and Condition of Hightex GmbH
1. General Provisions – Scope of Application
1.1. These Standard Terms and Conditions (hereinafter: STC) of Hightex GmbH, Nordstrasse 10, 83253 Rimsting (hereinafter: Hightex) shall be the exclusive basis applicable to any contract concluded with a contractor (hereinafter: Customer) for the sale of goods, or for the performance of work, for work and material, or for services by Hightex. Contractor shall mean any person who concludes the contract in the pursuit of a commercial or independent professional activity.
1.2. The Customer agrees to the STC by accepting the offer or concluding the contract in which the STC are included.
1.3. Standard terms and conditions of the Customer which conflict with, deviate from, or go beyond these STC shall be deemed objected to, unless they are expressly accepted in writing. These STC shall also be applicable if Hightex effects delivery of the goods without reservation despite having knowledge of the Customer’s standard terms and conditions which conflict with or deviate from these Standard Terms and Conditions.
1.4. The STC shall apply as amended at the time contracts are concluded.
2. Offer – Offer Documents
2.1. Quotations or letters of offer of Hightex are subject to change without notice and are not binding. They are to be considered as a mere invitation to the Customer to make a binding offer to Hightex.
2.2. Hightex shall be entitled to accept the Customer’s offer inherent in his order within a period of 2 weeks. A contract shall not be deemed effectively concluded until it has been expressly accepted in writing by Hightex. Tacit acceptance shall be excluded. Hightex reserves the right to make, within reasonable bounds, technical changes within the meaning of technical progress.
2.3. The conclusion of a contract shall be subject to Hightex’s receiving correct and punctual delivery from its suppliers. This shall only apply in case that such incorrect delivery or non-delivery is not due to facts for which Hightex is responsible.
3. Prices – Terms of Payment
3.1. All prices quoted are net prices, plus the statutory value-added tax, unless expressly stated otherwise. All prices quoted are binding.
3.2. Unless otherwise agreed upon, the price ex works is exclusive of assembly costs and of packaging, freight and transport insurance. If shipment of the goods has been agreed upon, shipment shall be effected in the way determined by Hightex at its free choice. Any costs for special packaging or other expenses, charges or customs duties shall be borne by the Customer.
3.3. Unless otherwise agreed upon, payment shall be made within a period of 10 days from the date of invoice, without deduction.
3.4. In case of a contract for the production of a work, the remuneration shall be due for payment upon acceptance of the work. Hightex shall be entitled to demand at any time payment on account for installments delivered as agreed upon under the contract. Payments on account shall be due and made immediately. This shall also apply in case of delivery of materials or components.
3.5. If a customer is in default with a payment due, or if facts become known that the customer’s financial situation has considerably worsened, or if for any other reasons there are considerable doubts regarding the customer’s solvency or willingness to pay, Hightex shall be entitled to demand immediate settlement of all outstanding invoices and demand advance payment for all deliveries yet to be made, or, without prejudice to any other rights to which it is entitled, to rescind the contract after expiration of a reasonable deadline set for payment.
3.6. In case of shipment abroad Hightex shall reserve the right to demand provision of security in order to mitigate or exclude the risk of payment default.
4. Delivery Dates – Force Majeure
4.1. The performance dates stated in the order confirmation are not binding and shall be subject to Hightex’s receiving punctual delivery from its suppliers.
4.2. Partial performance shall be admissible, unless the Customer is able to prove that partial performance is not of any interest to him.
4.3. If Hightex is prevented from rendering performance on the date agreed upon due to circumstances unforeseen and beyond its control which it is unable to avert despite exercising the due care and diligence of a prudent businessman (force majeure), the period for delivery shall be extended reasonably in accordance with the duration and the scope of the impediment, provided that performance is not definitely impossible.
5. Reservation of Title
5.1. Hightex shall reserve title to the goods or the work until Hightex has received full payment for such goods or work from the Customer. The extended reservation of title shall apply.
5.2. Goods or works to which Hightex retains the title shall not be used, prior to the receipt of full payment, as a pledge or security within the scope of other legal transactions.
5.3. Until full payment of the goods or the work has been made, the customer shall hold the goods or the work in trust for Hightex and shall keep them separate from his property and the property of third parties, and shall properly store, secure and insure the reserved goods and mark them as the property of Hightex.
5.4. The Customer shall notify Hightex promptly in case of attachment or any other act of seizure by third parties. If the Customer fails to do so, he shall be liable for any damage caused thereby.
5.5. If the reserved goods are further processed or combined with other movable or immovable items, which include a part to which Hightex does not hold title, Hightex shall acquire a corresponding part-ownership. The same shall apply in case of mixing.
5.6. Hightex shall undertake to release the security provided to it at the request of the customer if such security exceeds the value of the claim by 20%. 6. Passage
6. Passage of Risk
6.1. If shipment of the goods by Hightex has been agreed upon, the risk of accidental loss shall pass onto the Customer upon delivery of the goods to the forwarding agent, freight carrier or any other person in charge of carrying out the shipment, however, at the latest at the moment the goods to be shipped leave the distribution warehouse, whichever event occurs earlier. In case of delay of the shipment for reasons the Customer is responsible for, the risk shall pass onto the Customer from the day the goods are ready for shipment.
6.2. In case of sale ex works, the risk of accidental loss of the goods shall pass onto the Customer at the moment Hightex notifies the Customer that the goods are ready for collection.
6.3. Points 6.1. and 6.2. shall also apply to contracts of sale which include the obligation of assembly of the goods.
6.4. In case of a contract for the production of a work the risk of accidental loss shall pass onto the Customer upon acceptance of the work, or upon putting the work into operation, which is equivalent to an acceptance if the customer fails to accept the work within a period of 10 working days from having been requested in writing to do so.
7. Customer’s Duty of Cooperation
If it is necessary to render performance on the Customer’s premises, the Customer shall enable and reasonably support Hightex in carrying out such performance by providing rooms and time. In addition, the Customer shall ensure that the provisions concerning safety at work are complied with and shall designate a competent contact person who is able to make binding decisions during the implementation of the contract.
8. Termination of Contracts for Works and Services
8.1. The Customer and Hightex shall have a right of termination as provided for by law.
8.2. Hightex shall have the right to terminate the entire contract if the Customer is for more than two weeks wholly or partly in arrears with a payment on account or if the Customer prevents Hightex, with intention or gross negligence, from proper and expert fulfillment.
8.3. In case of termination Hightex shall remain entitled to its full remuneration. Furthermore, sect. 649 of the German Civil Code shall apply.
9. Warranty Claims
9.1. Hightex shall provide warranty for defects in the sold goods or works, at its option, first through repair or by providing replacement or a new work.
9.2. If the deadline for the remedy of defect has expired or if the remedy of the defect has been unsuccessful, the Customer, at his option, may reduce the purchase price or the remuneration, or rescind the contract. In case of a contract for the production of a work the Customer may also remedy a defect himself. The remedy of a defect shall only be considered as unsuccessful when it must be assumed after repeated attempts that it is impossible to remedy the defect. In case of minor lack of conformity with the contract, in particular in case of minor defects, rescission of the contract shall be excluded.
9.3. The Customer must inspect the goods purchased promptly upon their delivery or collection and verify whether they are free from defects and complete, and must report obvious defects in writing promptly upon receipt of the goods, otherwise the goods shall be deemed accepted. Such notice of defects must be made in writing and the defect reported must be described in detail. Defects which are not obvious must be reported to Hightex promptly upon their detection, however, no later than within a period of 14 days. Furthermore, sect. 377 of the German Commercial Code shall apply analogously.
9.4. The warranty period shall be one year from delivery/collection of the goods or acceptance of the work. In case of buildings the statutory periods of limitation shall apply. In case of services the period of limitation shall be one year from the statutory commencement of the period of limitation. This shall not include damage claims based on harm to life, body or health and/or damage caused by Hightex through gross negligence or intent.
9.5. If Hightex removes a defect within the scope of remedy of a defect, this shall not result in a new commencement of the period of limitation, unless a further notice of a defect concerns the defect already remedied or a direct consequence of the remedy of the defect.
9.6. For the Customer to be entitled to warranty claims it is required that the defect is inspected and verified by Hightex at the Customers premises or that the goods/the work are shipped by the Customer, freight paid, in proper and secure packaging, at the Customer’s risk, to Hightex or to a repair shop designated by Hightex.
9.7. If no defect is found in such inspection Hightex shall be entitled to charge the Customer the costs for such inspection at its regular hourly rates or all-inclusive rates.
9.8. No defects are such deteriorations which are caused by external circumstances such as building moisture or subsoil changes, improper handling, damaging or processing by third parties or the Customer himself, or any other circumstances for which Hightex is not responsible. Hightex shall also not be liable for wear and tear caused through the use of the item in conformity with the contract, or for natural wear and tear due to weather conditions.
9.9. The assignment of warranty claims to third parties shall be excluded.
10.1. For slightly negligent breach of duty Hightex shall be liable only in case material contractual duties or warranties are concerned, provided that such breach of duty does not result in harm to life, body or health, or give rise to claims under the product liability law or any other strict liability. The liability shall be limited to the average direct damage which is foreseeable and typical to the contract.
10.2. To the extent that liability is excluded or limited for Hightex, this shall also apply to the liability of its legal representatives, employees or vicarious agents.
10.3. Damage claims against Hightex shall become statute-barred one year from the statutory commencement of the limitation period. This shall not apply to damage claims due to harm to life, body or health and/or due to damage caused by Hightex through gross negligence or intention.
11. Right of Retention, Offsetting
The Customer shall only have a right of retention of payment or a right of set-off, for any legal reason whatsoever, if such counterclaims are uncontested or found justified by a final and absolute court judgment. In any case, the customer shall only have a right of retention if his counterclaims are based on the same contractual relationship. Outstanding amounts yet to be credited shall not entitle the Customer to the retention of payments.
12. Confidentiality, Secrecy, Copyright
12.1. The parties shall treat confidentially any information concerning the contractual relationship or obtained due to the contractual relationship about the respective other party, unless such information is publicly known or accessible.
12.2. The Customer shall undertake to maintain strict secrecy of diagrams, drawings, calculations, business records and other documents and information obtained from Hightex. They shall not be disclosed to third parties without the express approval of Hightex. The obligation to maintain secrecy shall remain in force beyond the termination of this contract. It shall cease if and to the extent that the manufacturing know-how contained in the diagrams, drawings, calculations or other documents becomes publicly known.
12.3. Hightex shall reserve the title to and copyright of diagrams, drawings, calculations, business records and other documents provided to the Customer during the negotiation and/or implementation of a contract. They shall not be disclosed to third parties without Hightex’s express written approval. Upon complete execution of the contract, or in the event of non-conclusion of the contract, they shall promptly be returned to Hightex without being requested to do so.
13. Applicable Law, Jurisdiction, Miscellaneous
13.1. The applicable law shall be the law of the Federal Republic of Germany. The conflict-oflaws rules of German International Private Law and the provisions of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
13.2. Place of jurisdiction for all disputes arising out of this contract shall be the registered office of Hightex, subject to the proviso that Hightex shall be entitled to file an action at the place of the registered office of the Customer or of a subsidiary of the Customer.
13.3. Modifications and amendments to these provisions must be made in writing. Oral side agreements must be proven by the party that invokes such oral side agreements.
13.4. In the event that any provisions under these Standard Terms and Conditions or any other agreement entered into should be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall undertake to replace such invalid provision by a legally valid provision which comes as close as possible to the intended economic purpose of the invalid provision.