General Terms and Conditions of Sale and Delivery of Hermann Hartje KG

Issue December 2021

Section 1 Scope
(1) These General Terms and Conditions of Sale and Delivery (hereinafter referred to as GCS) apply to all sales and deliveries as well as to all other services (e.g. also for works) of Hermann Hartje KG (hereinafter referred to as “Hartje” or “we”). These GCS are an integral part of all our contract offers and contract acceptances and apply to all services rendered by us, including orders placed via our EOS-Web.
(2) These GCS apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the buyer will not be recognised by us, even if we do not expressly object to their validity. This will also apply if we perform the service without reservation in the knowledge of the buyer’s terms and conditions. The buyer’s terms and conditions of business will become part of the contract as an exception only if we have expressly agreed to their validity in text form.
(3) Individual agreements made with the buyer on a case-by-case basis (including ancillary agreements, supplements and amendments) take precedence over these GCS. Such agreements must be made or confirmed in writing for evidence purposes. Subject to evidence to the contrary, the contract or our written confirmation will be decisive for the conclusion and content of such agreements.
(4)These GCS also apply to all future transactions with the buyer, even if we do not refer to the validity of the GCS again.
(5) These GCS apply only to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).
(6) References to the applicability of statutory provisions are for clarification purposes only. In addition to these GCS, the statutory provisions also apply without any reference to them, unless they are directly amended or expressly excluded in these GCS.
(7) Insofar as these GCS require compliance with written form, compliance with text form within the meaning of Section 126b BGB will also be sufficient. Statutory formal requirements remain unaffected.

Section 2 Offers, Conclusion of contract, Documents
(1) Cost estimates, price and delivery information, for example in catalogues and presentations on the Internet, do not constitute legally binding offers, but are to be understood as an invitation to the buyer to submit an offer. Orders placed by the buyer are binding offers to us, to which the buyer is bound for 14 days in case of doubt. The contract comes into effect when we confirm the buyer’s order, commence with fulfilment of the contract or deliver the goods. The buyer waives receipt of our declaration of acceptance. If, by way of exception, our declaration is to be understood as a legally binding offer, we are entitled to revoke our offer at any time until acceptance by the buyer, unless the offer expressly states otherwise.
(2) Cost estimates, sketches, drawings, illustrations, performance descriptions and other documents which are not part of the scope of delivery will remain our property and we reserve all copyrights thereto. They may not be made accessible to third parties and must be returned immediately upon request.
(3) Supplementary information for orders via EOS-Web: We deliver exclusively to entrepreneurs. No sale to consumers takes place. Orders are only possible after registration and approval of the buyer for orders via EOS-Web. The ordering process consists of the following steps: After logging in with their registration data, the buyer can place the goods in a virtual shopping basket without obligation by clicking on the button with the shopping basket symbol. The buyer can view the contents of the shopping basket at any time by clicking on the shopping basket symbol and can delete products from the shopping basket or change the quantity using the fields provided. Before placing an order, the buyer has the opportunity to check all details and correct any input errors using the editing fields provided. Only by clicking on the field “order subject to payment” does the buyer submit a binding offer to conclude a purchase contract. Unless otherwise agreed in individual cases, the buyer will receive an automatically generated confirmation of receipt after placing their order. This does not constitute acceptance of the contract.
The contract comes into effect when we confirm the buyer’s order in writing or inform the buyer about shipment of the goods or deliver the goods. We save the text of the contract. The buyer can view, print and save these GCS as part of the order process. The contract language is German. The buyer can save and/or print out the contents of the order immediately after placing the order. Later inspection of the order history is possible via the user account. It is not possible to view the version of the GCS applicable at the time of conclusion of the contract there.

Section 3 Prices, Terms of payment
(1) Our prices are quoted in EURO plus statutory value added tax at the applicable rate. Unless otherwise agreed, the prices are ex warehouse (exw Incoterms 2020) plus costs for shipping (cf. Section 4), packaging and insurance, customs duties or other taxes. In drop shipments, the prices will apply ex works (exw Incoterms 2020) of our supplier. Unless otherwise agreed, the prices valid on the date of conclusion of the contract will apply. For invoice amounts below EUR 50.00 we charge a handling fee of EUR 5.00 for small orders.
(2) The prices stated for our delivery are based on the circumstances prevailing at the time of conclusion of the contract. In the event of unforeseeable significant changes in costs after conclusion of the contract which are beyond our control, e.g. increases in freight rates, transport costs, taxes, customs duties or other public charges, currency fluctuations, price increases for raw materials or supplies, we are entitled to adjust the prices at our reasonable discretion. In the event of price increases of more than 15% of the net price, the buyer will be entitled to withdraw from the contract. For price increases due to supply bottlenecks, which we have pointed out before conclusion of the contract, Section 5 Para. 3 applies.
(3) Invoice amounts are due for payment upon receipt of the invoice and delivery or acceptance of the goods. Deductions such as cash discounts are not permitted unless expressly agreed with the buyer. The buyer will automatically be in default if the invoice amount is not paid within the agreed payment period or the payment period stated in the invoice or, if no deviating payment period is stated, within 14 days of receipt of the invoice. The date of receipt of the payment by us will be decisive. An earlier occurrence of default in accordance with the statutory provisions, in particular by means of a reminder, will remain unaffected.
(4) We are entitled at any time, including within the framework of an ongoing business relationship, to conclude a contract in whole or in part only against advance payment.
(5) We are entitled to issue invoices in electronic form.
(6) During a delay in payment , the buyer is obliged to pay as minimum damages default interest and lump-sum damages in accordance with the statutory provisions. The assertion of damages in excess of this is not excluded. With respect to merchants, our claim to the commercial due date interest (Section 353 German Commercial Code (HGB)) remains unaffected.
(7) If it becomes apparent after conclusion of the contract (e.g. due to an application for the opening of insolvency proceedings, default with other performance obligations) that our claim to the purchase price is jeopardised by the buyer’s lack of ability or willingness to perform, we will be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract. Section 321 BGB will apply (mutatis mutandis). Special agreements (including special discounts) are void in this case.
(8) The buyer will be entitled to rights of set-off and retention if its counterclaims have been legally established, are undisputed or have been recognised by us.

Section 4 Delivery, Shipping costs and Transfer of risk
(1) Unless otherwise agreed, delivery will be ex warehouse (exw Incoterms 2020).
(2) If we undertake dispatch of the goods for the buyer or carry out the transport ourselves, the transport will be at the buyer’s expense, unless otherwise agreed. The choice of shipping route and transport will be made at our discretion without any special agreement. Insofar as we take into account the buyer’s wishes, any additional costs incurred as a result will be borne by the buyer.
(3) The shipping options and shipping costs applicable to orders via EOS-Web will be displayed to the buyer in the order process under “Shipping method”.
(4) The risk will be transferred to the buyer no later than when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. In the case of transports carried out by ourselves, this will not apply if a separate fee has been agreed with the buyer to cover transport risks (“flat-rate insurance fee”). In this case, the risk will not pass to the buyer until the goods have been made available at the place of delivery.

Section 5 Delivery periods/Delay in delivery
(1) Details of delivery dates are non-binding unless they have been agreed in writing as binding dates. An agreed delivery period will commence no earlier than upon conclusion of the contract, but not before the technical and commercial details of the execution of the order have been fully clarified. The commencement of all periods applicable to us also presupposes the timely fulfilment of all necessary acts of cooperation, in particular the timely receipt of all necessary information, as well as compliance with the agreed terms of payment by the buyer. In the event that duties to cooperate are not fulfilled in good time, delivery periods will not commence or will be extended accordingly.
(2) Delivery will be made subject to timely and proper self-delivery by our suppliers. We do not assume any procurement risk. In the event of non-availability of the service, we will inform the buyer.
(3) If we are unable to secure the delivery at the time of conclusion of the contract due to supply bottlenecks on the part of our suppliers by means of corresponding covering purchases and if we have informed the buyer in an appropriate and reasonable manner of supply bottlenecks and the possibility of price increases before conclusion of the contract, the following will apply:
– The agreement is made subject to availability. The delivery time will be extended until the goods are available.
– The buyer is entitled to withdraw from the contract if delivery is not made within three months of the agreed delivery date.
– We are entitled to pass on price increases by our suppliers to the buyer in the meantime. The buyer is entitled to withdraw from the contract if the price increase is more than 15%. Further claims of the buyer are excluded.
(4) We will not be liable for non-deliveries or delays in delivery if these are due to force majeure or any other impediment beyond our control and we could not reasonably be expected to consider the impediment or to avoid or overcome the impediment or its consequences. This applies, for example , to acts of war, terrorism, acts of nature, operational, transport and traffic disruptions, non-delivery of supplies and raw materials, strikes, lawful lock-outs, official orders, mass illnesses, epidemics and pandemics, manufacturing disruptions including machine breakdowns and labour shortages. In such cases, we will inform the buyer of the reason for the impediment and its effects. If such an event makes it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only temporary, both parties are entitled to withdraw from the contract. In the event of temporary hindrances, our delivery or service deadlines will be extended or our delivery or service deadlines will be postponed by the period of the hindrance plus a reasonable start-up period. Either party will be entitled to withdraw from the contract if the resulting delay exceeds a period of three months or if, as a result of the delay before the expiry of this period, it can no longer be reasonably expected to adhere to the contract, with the consequence that any advance payments made will be refunded. No other claims exist.
(5) Partial deliveries are permissible insofar as they are reasonable. Invoices issued for partial deliveries will be due for payment irrespective of the total delivery.
(6) If we are in default of performance, the buyer will afford us the opportunity to perform within a reasonable period of time. As a rule, the period of grace will be at least three weeks.
(7) In the event of a delay in delivery or impossibility, liability for damages will only exist in accordance with Section 9.

Section 6 Obligations of the buyer, General obligations of the buyer to cooperate, Liability of the buyer for damages
(1) We only deliver to knowledgeable buyers. Vehicles are not delivered by us in an assembled condition ready for sale, but require final assembly. This is the responsibility of the buyer. The buyer is obliged to carry out the final assembly, the assembly of components as well as the installation of parts or components carefully and only through skilled and competent mechanics. In the event of an injury, the buyer will be liable for all resulting damages. The buyer will indemnify us against all possible damages and disadvantages resulting from faulty assembly by the buyer.
(2) The buyer is obliged to provide, in a timely manner, all cooperations that are contractually regulated, necessary or owed in good faith. For example, the buyer is obliged to issue a confirmation of receipt without being asked to do so in accordance with the statutory provisions. The parties undertake to cooperate in a spirit of trust and will support each other, for example in the settlement of warranty claims.
(3) We are entitled to set the buyer a reasonable time limit for the performance of an act of cooperation. After unsuccessful expiry of the time limit, we will be entitled to withdraw from the contract.
(4) Unless stipulated otherwise in these GCS, the buyer will be liable in accordance with the statutory provisions. If the buyer owes damages instead of performance, we will be entitled to demand lump-sum damages in the amount of 15% of the performance, unless the buyer proves a lower extent of damage. We reserve the right to claim higher damages in accordance with the statutory provisions.

Section 7 Retention of title
(1) Our deliveries are subject to retention of title. We retain ownership of the delivered goods until the purchase price and all other existing or (at the time of the conclusion of the contract) future claims (including all balance claims from the current account) against the buyer arising from the business relationship have been settled in full. Ownership of the goods automatically passes to the buyer as soon as the purchase price has been paid and no further claims from the business relationship exist (current account reservation).
(2) Any processing or treatment of the goods subject to retention of title by the buyer will always be carried out for us as the processor within the meaning of Section 950 BGB. If the goods subject to retention of title are processed by the buyer, it is agreed that the processing will be carried out in our name and for our account as manufacturer and that we directly acquire ownership of the newly created item. If the goods are processed with other items not belonging to us, we will acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (invoice value including VAT) to the other processed items at the time of processing. If the goods subject to retention of title are inseparably combined or mixed with other items not belonging to us, we will acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the goods subject to retention of title are combined or mixed in such a way that the buyer’s item is to be regarded as the main item, the buyer and we already agree now that the buyer will transfer co-ownership of this item to us on a pro rata basis (in proportion to the value of the raw materials). We accept this transfer. The provisions for goods subject to retention of title apply accordingly to the products resulting from processing, mixing or combining, in so far as they are our property.
(3) The buyer is obliged to treat the goods subject to retention of title with care at its own expense, to store them carefully for us and to insure them adequately against the usual risks (e.g. theft, breakage, fire, water) at replacement value and to provide evidence of the conclusion and existence of the insurance policy upon request. We are entitled to insure the goods subject to retention of title at its expense. We may at any time demand that the buyer keep an inventory of the goods delivered by us at its respective storage location and identify the goods as our property. Insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods are already now assigned to us by the buyer by way of security. We hereby accept this assignment.
(4) The buyer will inform us immediately of any seizures and other impairments of our rights by third parties.
(5) The buyer is entitled to sell the goods subject to retention of title in the ordinary course of business. Pledges and transfers by way of security are only permitted with our prior written consent. The authorisation will automatically expire if the buyer is in default of payment, the opening of insolvency proceedings against its assets has been applied for, or it is obliged to apply for insolvency proceedings. In the event of a resale of the goods subject to retention of title on credit, the buyer is obliged to sell the goods only against sufficient collateral (e.g. agreement of its own reservation of title).
(6) The buyer hereby assigns to us by way of security any claims against third parties arising from the resale of goods subject to retention of title in the amount of the share corresponding to our ownership share. The assignment is furthermore limited to a maximum of the amount of the invoice value of our claims (including value added tax) to which we are entitled against the buyer from the business relationship at the time of the resale, plus a security surcharge of 20%.
(7) The buyer is authorised to collect the claims assigned to us from the resale. The proceeds to which we are entitled will be forwarded to us immediately upon receipt. At our request, the buyer will inform us of the names of the debtors of the assigned claim and notify them of the assignment. We are authorised to inform the buyers of the assignment also on its behalf. The direct debit authorisation will automatically expire if the buyer is in default of payment, the opening of insolvency proceedings against its assets has been applied for, or it is obliged to apply for insolvency proceedings.
(8) Notwithstanding any automatic expiry, we will be entitled to revoke the resale and/or further processing authorisation and/or the collection authorisation if the buyer breaches its obligations towards us, in particular if it fails to properly fulfil its payment obligations arising from the business relationship, in particular if it is in default of payment, or if it breaches its obligations as a conditional buyer or if it becomes apparent after the conclusion of the contract that our payment claims arising from the business relationship with the buyer are jeopardised by the buyer’s inability to pay. In the event that the collection authorisation expires, the buyer will provide us with the information on the claim required for collection and, if necessary, support us in the collection process.
(9) Furthermore, in the event of conduct in breach of contract on the part of the buyer, we will be entitled to withdraw from the contract in accordance with the statutory provisions. Alternatively, provided that the prerequisites for withdrawal are met, we are also entitled to demand only the return of the goods and to expressly reserve the right to withdraw from the contract. If such an express reservation of withdrawal is not declared, the demand for surrender will be deemed to be a declaration of withdrawal. The same will apply if we seize the goods subject to retention of title. The transport costs incurred for taking back the goods will be borne by the buyer. We will be entitled to utilise any goods subject to retention of title taken back by us. The proceeds of the realisation will be offset against the amounts owed to us by the buyer after we have deducted a reasonable amount for the costs of the realisation.
(10) The buyer will notify us of any third-party seizure of the goods subject to retention of title immediately after it becomes known, and will provide us with all information and documents necessary for an intervention. The buyer is liable for the costs incurred for the cancellation of the seizure, in particular by filing a third-party action, insofar as they cannot be obtained from the creditor seeking the seizure.

Section 8 Condition of the goods, Warranty
(1) Information on the condition of the goods does not constitute a guarantee. A guarantee will only be given if it has been expressly designated as such in writing using this term.
(2) We will not be responsible for defects based on the defectiveness of supplied parts unless we have given a guarantee in this respect or the defect was known or obvious to us. We are not obliged to carry out quality control of supplied parts.
(3) A prerequisite for any warranty claims is that the buyer fulfils its obligations to inspect and give notice of defects. The buyer is obliged to immediately inspect the delivery or service for defects, including incorrect deliveries and deviations in quantity, for all services rendered by us. In the case of goods intended for installation or other further processing, the inspection must in any case be carried out before processing. Obvious defects must be notified in writing, if possible upon delivery, but no later than on the working day following delivery. Other defects that are recognisable upon proper inspection within the meaning of Section 377 of the German Commercial Code (HGB) must be notified in writing within five working days of delivery. Defects that are not recognisable on proper inspection must be notified in writing within two working days of discovery. Timely dispatch of the notice will be sufficient to preserve the rights. If defects are not notified in accordance with the above provisions, the delivery will be deemed to have been approved in accordance with the contract. Notices on delivery notes are not deemed to be notification of defects. Transport personnel are not entitled to receive notifications of defects. The above obligations to give notice of defects will also apply to work performances with the proviso that acceptance will be decisive instead of delivery.
(4) The burden of proof for the existence of a defect lies with the buyer.
(5) In the event of proven defects, we will, at our discretion, provide a warranty by rectifying the defect free of charge or by making a subsequent delivery (supplementary performance). We are entitled to demand that the buyer return the defective goods to us in advance for the purpose of investigating the complaint and, if necessary, for subsequent improvement or subsequent delivery. The place of performance for supplementary performance is our plant. Furthermore, we are entitled to demand that the buyer carry out the subsequent improvement itself, provided that this is reasonable for the buyer. In this case, we will reimburse the buyer for the necessary expenses.
(6) If the buyer has installed the goods in another item or attached them to another item in accordance with their type and their contractual purpose, we will be entitled within the scope of subsequent performance to undertake the removal of the defective item and the re-installation of the defect-free item ourselves or to leave the removal and installation to the buyer. In the latter case, we will reimburse the buyer for the necessary expenses. The buyer will set us a reasonable notice period within which we can carry out the removal of the goods on our own responsibility. Our right to refuse subsequent performance due to disproportionate costs remains unaffected. Subsequent performance will in any case be disproportionate if the costs of subsequent performance amount to more than 120% of the purchase price.
(7) In the event that the goods are returned for the purpose of subsequent improvement or delivery, the goods must be returned without any accessories or equipment subsequently attached. We accept no liability for accessories and equipment supplied with the goods.
(8) The buyer may only withdraw from the contract or reduce the purchase price if no attempt is made to remedy the defect within a reasonable period of time set by us or if the remedy is impossible, refused, failed or unreasonable. The period for subsequent performance must be at least four weeks, provided that no justified interests of the buyer contradict this. In the event of doubt, failure of the supplementary performance will only be assumed after the third failed attempt at supplementary performance. The buyer is not entitled to withdraw from the contract on grounds of insignificant defects. In addition to the statutory requirements, the special provisions in Section 9 apply to claims for damages due to defects.
(9) Due to defects, the buyer may only withhold payments to an extent that is reasonable in relation to the defects that have occurred.
(10) The statutory provisions on the buyer’s recourse pursuant to Sections 445a, 445b, 478 BGB will apply with the following provisos: Prior to subsequent performance by way of replacement delivery or replacement of components, the buyer will inform us without delay and give us the opportunity to fulfil the claims for defects asserted against the buyer ourselves. The same applies if the buyer intends to commission a third party with subsequent performance by way of rectification of defects. Compensation for expenses incurred by the buyer without any legal obligation towards its customer, in particular as a gesture of goodwill, will only be made if we have agreed to the measure in advance. Recourse on the part of the buyer is excluded insofar as an item not intended for installation is installed. Claims arising from supplier recourse will be excluded in any case if the defective goods have been further processed by the buyer or another entrepreneur, for example by installation in another product or inseparable connection with another product. For the processing of recourse claims, at least the presentation of the original sales receipt from the resale and, in the case of vehicles, the original of the handover protocol to the buyer’s customer as well as the return of the defective goods/parts are required. We are entitled to demand further evidence.

Section 9 Buyer’s right to withdraw from the contract and claims for damages
(1) The statutory provisions will apply to the right to withdraw from the contract with the proviso that the buyer may only withdraw from the contract due to a breach of duty not consisting of a defect if we are responsible for the breach of duty.
(2) In principle, we will only be liable for damages, insofar as the other requirements for claims are met, if we are guilty of intent or gross negligence. We will be liable for simple negligence in the event of a breach of an obligation the fulfilment of which is a prerequisite for the orderly implementation of the contract and on the observance of which the buyer may regularly rely (so-called cardinal obligation). In all other respects, liability for damages of any kind, regardless of the basis of the claim, including liability for default upon conclusion of the contract, is excluded.
(3) If we are liable for slight negligence, our liability will be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. In the event of slight negligence, there will be no liability for indirect damage or consequential damage.
(4) For damage caused by delay, we will be liable to a maximum of 5% of the value of the service in default.
(5) The above exclusions and limitations of liability do not apply if we are liable for intent or gross negligence, if we have assumed a guarantee, for damages that are to be compensated under the Product Liability Act or for damages to life, limb or health.
(6) The above exclusions and limitations of liability will also apply in favour of our employees, vicarious agents and other third parties whom we use for the performance of the contract.

Section 10 Statute of limitations
(1) The limitation period for claims based on defects is one year from the date of delivery.
(2) Other contractual claims of the buyer due to breach of duty are subject to a limitation period of one year. This does not apply to the buyer’s right to withdraw from the contract due to a breach of duty for which we are responsible and which is not due to a defect. (3) By way of derogation, the statutory limitation periods will apply to the following claims of the buyer:
– Claims for damages arising from product liability, for damages arising from injury to life, limb, health or a material contractual obligation as well as for other damages based on an intentional or grossly negligent breach of duty by us or our vicarious agents
– Claims under a right of recourse pursuant to Section 445b Para. 1 BGB
– Claims due to fraudulent concealment of a defect.
(4) Our claims against the buyer will become statute-barred in accordance with the statutory provisions.

Section 11 Choice of law, Place of performance and Place of jurisdiction
(1) The law of the Federal Republic of Germany will apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance is Hoya.
(3) In legal transactions with merchants, Hoya is agreed as the exclusive place of jurisdiction for legal actions against us. We are also entitled to bring legal action at the buyer’s general place of jurisdiction.
(4) Should individual provisions of the contract, including these GCS, be or become invalid in whole or in part, this will not affect the validity of the remaining provisions. In this case, the wholly or partially invalid provision will be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.