§ 1 scope, form
(1) These General Terms and Conditions of Sale (GTC) apply to all of our business relationships between Herring GmbH, Willinghusener Weg 2A, 22113 Oststeinbek (“we”) and our customers (“buyer” or “customer”). The terms and conditions only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. We are a trading provider specializing in spare parts, machine parts and related products. We only supply commercial customers and not end consumers.
(2) The General Terms and Conditions apply in particular to contracts for the sale and / or delivery of movable items (“goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the order of the buyer or at least in the version last communicated to him in text form apply as a framework agreement also for similar future contracts, without us having to refer to them again in each individual case.
(3) Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions or contractual offers of the buyer only become part of the contract if and to the extent that we have expressly consented to their validity. This consent requirement applies in any case, for example even if we carry out the delivery to the buyer without reservation in the knowledge of deviating conditions of the buyer.
(4) Individual agreements made with the buyer on a case-by-case basis (including side agreements, additions and changes) always take precedence over these GTC. A contract or our confirmation, in each case in text form, is decisive for the content of such agreements, subject to evidence to the contrary.
(5) Legally relevant declarations and notifications by the buyer in relation to the contract ( e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be submitted in text form, ie in writing or in text form ( e.g. letter, email, fax) . Statutory formal requirements and other evidence, especially in the event of doubts about the legitimacy of the declaring party, remain unaffected.
(6) References to the validity of statutory provisions only have a clarifying meaning. Even without such a clarification, the statutory provisions apply, unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of Contract and Communication
(1) Our offers are subject to change and non-binding. This also applies if we have given the buyer catalogs, technical documentation ( e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we have property rights and copyrights Reserved.
(2) The order of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 7 working days of receiving it.
(3) The acceptance can be declared either in text form ( e.g. by order confirmation) or by delivery of the goods to the buyer.
(4) As part of the contractual relationship, we may communicate with the customer by email . The customer must ensure that the e-mail address provided by him for processing the order is correct and that no settings or filter devices of the customer prevent the receipt of contract-related e-mails.
(5) Unless otherwise agreed, we do not owe any advice or support with or for the installation of spare parts in individual cases. We urgently and in any case recommend to the customer that the purchased item is properly installed and properly maintained by sufficiently qualified personnel in accordance with the manufacturer’s instructions. After assembly, a functional and safety test must be carried out on all parts (as far as possible with regard to the nature of the part) by qualified personnel. Operating fluid and lubricant specifications as well as operating, maintenance and care instructions from the manufacturer must always be observed. We are not liable for damage caused by improper installation and / or operation or improper care or maintenance for which we are not responsible and which are not caused by a defect in the purchased item or defective assembly instructions. In this case, the customer must reimburse us for the costs of checking and processing an incorrect notification of defects.
(6) Before placing an order, the buyer must check whether the goods ordered are suitable for his needs. We can consider all communications from the customer in the context of the contractual relationship to be correct and accurate in terms of content and are not obliged to review them. We notify the customer of any inaccuracies that are recognized, who is then obliged to provide a correction immediately. In the event of incorrect orders from the customer for which we are not responsible, in particular in the event of errors in relation to the usability of the goods, we are not obliged to take them back or deliver a replacement. If we agree to a replacement delivery, the customer bears all resulting costs.
(7) In the case of deliveries with a delivery destination outside the Federal Republic of Germany, the customer must check the local requirements for the import and use of goods delivered by us, in particular any import and sales restrictions as well as any industrial property rights of the delivery area. In this respect, we are not obliged to advise or examine and our liability is excluded, unless we are not in accordance with § 9 of these terms and conditions must be liable.
(8) In the case of contracts for repair and maintenance work (as main or ancillary service), the following applies: Insofar as the scope of the respective maintenance work / repairs for the subject matter of the contract is defined by the customer when the contract is concluded, we shall determine the scope of services at our reasonable discretion and taking into account the interests of Customers. If it only becomes apparent during the processing of the order that the repair is impossible due to the condition of the subject of the contract, we are entitled to invoice the customer for the work performed up to this point. If it only becomes apparent during the processing of the order that the (further) repairs are uneconomical, we will inform the customer of this immediately. In this case, the customer is obliged to inform us immediately of a decision on how to proceed. If the customer decides not to allow the order to be continued, we are entitled to remuneration for the work performed up to that point and reimbursement of expenses not included in the remuneration.
(9) We are not liable for errors or additional expenses that result from incorrect documents, drawings, samples or other information provided by the customer. The customer has to compensate us appropriately for additional expenses arising from such errors.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period is agreed individually or specified by us when we accept the order. If this is not the case, the delivery period for goods in stock is 1 to 2 weeks for delivery destinations in Germany and 3 to 5 weeks for deliveries within the EU from the conclusion of the contract.
(2) If we cannot meet binding delivery times for reasons for which we are not responsible (unavailability of the service), we will inform the buyer of this immediately and at the same time notify the expected new delivery time. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; We will immediately reimburse any consideration already paid by the buyer. A case of non-availability of the service in this sense is in particular the late delivery by our supplier if we have concluded a congruent hedging transaction (i.e. the required goods ourselves have ordered the required goods in good time and correctly), neither us nor our supplier are at fault or we are in individual cases are not obliged to procure.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer can demand compensation for damage caused by the delay. We always reserve the right to prove that the buyer incurred no damage or only significantly less damage. Further claims of the seller are excluded, unless we acc. § 9 of these terms and conditions must be liable.
(4) The rights of the buyer according to Section 9 of these terms and conditions and our statutory rights, in particular in the event of an exclusion of the obligation to perform ( e.g. due to impossibility or unreasonableness of the service and / or subsequent performance), remain unaffected.
§ 4 delivery, transfer of risk, acceptance, default in acceptance
(1) Delivery takes place ex warehouse, which is also the place of performance for delivery and any subsequent performance. At the request and expense of the buyer, the goods will be sent to a different destination (sale by mail order). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest upon handover. In the case of sales by mail order, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are transferred to the forwarding agent, the carrier or the person or institution otherwise assigned to carry out the shipment. If acceptance has been agreed, this is decisive for the transfer of risk. In addition, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses ( e.g. storage costs). For this purpose we calculate a fixed compensation in the amount of 0.3% of the total cost of the product concerned per calendar day, beginning with the delivery or – in the absence of a delivery period – with the message of readiness for shipment of the goods.
Proof of higher damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The buyer is allowed to prove that we suffered no damage at all or only significantly less damage than the above flat rate.
(4) Customs clearance and the fulfillment of other import requirements at the delivery destination are the sole responsibility of the customer. If we support the customer in handling import formalities, it is a courtesy on our part, in which the customer has to reimburse us for the expenses incurred. We are not responsible for delays in delivery due to customs and import formalities.
§ 5 prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract apply, ex warehouse, plus statutory sales tax.
(2) In the case of sales by mail order (§ 4 Paragraph 1), the buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges are borne by the buyer.
(3) The purchase price is due and payable within 10 days of invoicing. However, even in the context of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest with the order confirmation.
(4) When the above payment period has expired, the buyer is in default. Interest is charged on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. Our claim to commercial maturity interest (§ 353 HGB) remains unaffected with regard to business people.
(5) The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the buyer’s counter-rights remain in particular in accordance with Section 8, Paragraph 6, Clause 2 of these Terms and Conditions shall not be affected.
(6) If, after the conclusion of the contract, it becomes apparent ( e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer’s inability to perform, we are entitled to withdraw from the contract in accordance with the statutory provisions on refusal of performance and – if necessary after setting a deadline entitled to the contract (§ 321 BGB). In the case of contracts for the production of non-representable items (custom-made items), we can declare our withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Refurbished components / old parts deposit
(1) The subject of our service can also be the general overhaul of an engine, an assembly or an individual part or the exchange of a used part by the customer for a part of the same type that has been completely overhauled by the company. We are permitted to deviate from the execution and are considered to be in accordance with the contract, provided this is reasonable for the customer and functionality is not restricted. Items that the customer leaves to us for general overhaul or to be exchanged for a general overhauled part must not have any defects or faults that are not due to natural wear and tear. In particular, the object to be delivered must be free of welded or unwelded breaks or cracks. We are not liable for defects and damage caused by defects that are based on previous damage to the repaired machine / assembly / facility, unless we are responsible for them due to gross negligence or intent.
(2) If we accept items in payment, the price agreed for the items in payment depends on the items accepted in payment being able to be repaired. If individual parts of the item accepted in payment can no longer be repaired, we are entitled to replace these parts and to calculate a reasonable deduction from the price agreed for the item accepted in payment. The customer is entitled to request the return of the parts that have been replaced, whereby this request must be communicated to us in writing immediately after the conclusion of the contract; otherwise we are not obliged to keep them. Exchanged parts are to be accepted at the latest upon handover after repairs have been completed; the customer bears the costs for transport and storage of exchanged parts
(3) We are obliged to return any old part deposit to the customer if the customer delivers an old part of the same type and capable of being repaired by us within 6 months of delivery of a new or replacement part , on which the manufacturer has levied a deposit. § 377 HGB does not apply to the delivery of old parts to us. If an old part of the same type and capable of being repaired is not delivered to us on time, the above claim of the customer shall expire without replacement; at the same time our claim against the customer for delivery of the old part expires.
§ 7 retention of title
(1) We reserve title to the sold goods until all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full . The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties ( e.g. seizure) have access to the goods belonging to us.
(3) If the buyer acts contrary to the contract, in particular if the purchase price is not paid, we are entitled to withdraw from the contract in accordance with the statutory provisions and / or to demand the return of the goods on the basis of retention of title. The request for surrender does not also include the declaration of withdrawal; we are rather entitled to only demand the goods and to reserve the right to withdraw. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or if such a deadline is dispensable according to the statutory provisions.
(4) The buyer is authorized until further notice in accordance with (c) below to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the full value of the products resulting from processing, mixing or combining our goods, whereby we are deemed to be the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their ownership rights remain, we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. In addition, the same applies to the resulting product as to the goods delivered subject to retention of title.
(b) The buyer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer named in paragraph 2 also apply with regard to the assigned claims.
(c) In addition to us, the buyer remains authorized to collect the claim. We undertake not to collect the claim as long as the buyer fulfills his payment obligations towards us, there is no defect in his performance and we do not exercise a right in accordance with Paragraph 3 assert. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer’s authorization to resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
§ 8 Claims for defects by the buyer
(1) The statutory provisions apply to the buyer’s rights in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or inadequate assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions remain unaffected for the final delivery of the unprocessed goods to a consumer, even if he has further processed them (supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. through installation in another product.
(2) The basis of our liability for defects is primarily the agreement made on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were made public by us (in particular in catalogs or on our website) at the time the contract was concluded shall apply as an agreement on the quality of the goods.
(3) If the condition has not agreed, to judge according to the legal regulation, whether a defect exists or not (§ 434, para. 1 p 2 and 3 BGB). However , we do not assume any liability for public statements by the manufacturer or other third parties ( e.g. advertising statements) that the buyer has not pointed out to us as being decisive for him .
(4) As a matter of principle, we are not liable for defects that the buyer was aware of when the contract was concluded or that was not known due to gross negligence (Section 442 BGB). Furthermore, the purchaser’s claims for defects require that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other processing, an examination must always be carried out immediately before processing. If a defect becomes apparent during the delivery, the inspection or at any later point in time, we must be notified of this immediately in writing. In any case, obvious defects are to be reported in writing within 5 working days from delivery and defects not recognizable during the inspection within the same period from discovery. If the buyer fails to properly examine and / or report defects, our liability for defects that are not reported or not reported in good time or not properly is excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can first choose whether we provide supplementary performance by eliminating the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under the legal requirements remains unaffected.
(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold part of the purchase price that is reasonable in relation to the defect.
(7) The buyer has to give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses required for the purpose of testing and subsequent performance, in particular transport, travel, labor and material costs in accordance with the statutory provisions, if there is actually a defect and we are obliged accordingly. Otherwise we can demand reimbursement of the costs incurred from the unjustified request for the removal of defects (in particular testing and transport costs) from the buyer, unless the missing defect was not recognizable to the buyer. The buyer is obliged to avoid unreasonable or unnecessary defect costs.
(9) In urgent cases, e.g. if operational safety is endangered or to avert disproportionate damage, the buyer has the right to remedy the defect himself and to demand reimbursement of the objectively necessary expenses from us. We are to be notified immediately of any such self-improvement, if possible in advance. The right to carry out work does not exist if we were entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or if a reasonable deadline to be set by the buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(11) Claims of the buyer for damages or reimbursement of wasted expenses only exist in the case of defects in accordance with § 9 of these GTC and are otherwise excluded.
§ 9 Other liability
(1) Unless otherwise stated in these terms and conditions including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We are liable for damages – regardless of the legal reason – within the scope of fault liability in the event of willful intent and gross negligence. In the event of simple negligence, we are only liable, subject to statutory liability restrictions ( e.g. care in our own affairs; insignificant breach of duty)
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and compliance with which the contractual partner regularly relies and may trust); in this case, however, our liability is limited to the replacement of the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from Paragraph 2 also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for in accordance with statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In addition, the legal requirements and legal consequences apply.
(5) The above limitations and exclusions of our liability also apply in favor of our legal representatives, employees and vicarious agents, if claims are asserted directly against them, as well as for claims for reimbursement of expenses.
§ 10 Limitation
(1) Notwithstanding Section 438 ( 1) No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If an acceptance has been agreed, the limitation period begins with the acceptance.
(2) If the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the statutory period of limitation is 5 years from delivery (Section 438 Paragraph 1 No. 2 BGB). Other special statutory regulations on the statute of limitations also remain unaffected (in particular § 438 Paragraph 1 No. 1, Paragraph 3, §§ 444, 445b BGB).
(3) The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in individual cases to lead. Claims for damages of the buyer acc. Section 9, Paragraph 2, Clause 1 and Clause 2 (a) of these General Terms and Conditions as well as the Product Liability Act only expire in accordance with the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
(1) For these terms and conditions and the contractual relationship between us and the buyer, the law of the Federal Republic of Germany applies to the exclusion of uniform international law, in particular the UN sales law.
(2) If the buyer is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Oststeinbek. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to take legal action at the place of fulfillment of the delivery obligation in accordance with these terms and conditions or a priority individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular those relating to exclusive responsibilities, remain unaffected.