T&C

Terms and Conditions

General Delivery Conditions
of Karl Heuft GmbH,
Wehrer Straße 21, 56745 Bell
and Heuft Thermo-Oel GmbH & Co KG,
Nippesstraße 15, 56745 Bell

1. Applicable conditions
The conditions set out below apply solely to all current and future legal transactions with all customers, unless explicitly agreed to the contrary in writing, even if they are not mentioned in subsequent contracts. General business conditions of our custom-ers are not a subject of legal transactions with us, even if reference is made to these, for instance, in the acceptance of the order or the order confirmation or otherwise, unless explicitly agreed to in writing by us.

2. Prices
The agreed prices are exclusive of packaging and transportation costs and are also exclusive of value-added tax in each instance.
In the case of repair work not executed within the scope of the warranty or guaran-tee, our price list which is available on request shall apply; material is invoiced additionally according to consumption; we are entitled to demand appropriate advance payments.

3. Delivery and transfer of risk
Goods are delivered from our warehouse or factory in Bell at the customer’s expense and risk. Partial deliveries are permitted and are considered separate transactions, to which these conditions of business apply in each instance. The risk of incidental loss or incidental damage to goods is transferred to the customer as soon as the con-signment is handed over to the person executing transportation, but in any case as soon as it has left our warehouse or factory for the purpose of dispatch.

4. Delivery period, withdrawal of the customer from the contract
If we are unable to adhere to a delivery date, the customer must grant an appropriate period for subsequent delivery of at least 4 weeks – starting with receipt of the declaration by us. Where timely delivery is prevented by force majeure or similar extraordinary events, whether at our premises, our sub-supplier’s premises or our transportation agency’s premises, the delivery time shall be extended to a reasona-ble extent.
We are released from the obligation to deliver if a supplier has not commenced or has ceased production of the goods ordered by us. We shall notify the customer of these circumstances without delay without the customer being able to assert a compensation claim due to any omission of this notification. If the specified delivery periods are not complied with despite the granting of a grace period or if the delivery is not possible for us due to other reasons, the customer can declare his withdrawal from the contract at the earliest after expiry of the aforementioned period.

5. Scope of supply
All connections and other preparatory services for the installation of our facilities, e.g. the construction of the foundation, must be executed by the customer at his expense and risk expertly and according to our specifications, in particular according to the installation schedule.
The customer is personally responsible for securing the official approvals and acceptances necessary for facility conversion or construction of a new facility and the necessary legally prescribed sketches at his own risk.

6. Default of acceptance
If, after expiry of a contractually agreed period or appropriate grace period of at least one week, the customer refuses acceptance of the delivery or if he declares his intention not to accept the delivery, we can withdraw from the contract and/or demand compensation due to non-fulfilment. This compensation claim constitutes 25 % of the net value of the goods plus statutory value-added tax. Hereby, the customer reserves the right to prove that the damage did not occur or is considerably less than the aforementioned flat-rate compensation; we reserve the right to prove and assert greater damages.

7. Retention of title
The objects of the delivery and spare parts installed in the case of repair works (reserved goods) remain our property until fulfilment of all claims due to us against the customer arising from the business relationship.
The customer’s acquisition of ownership to the reserved goods according to Section 950 of the German Civil Code (BGB) in the case of processing of the reserved goods into a new object is precluded. Any processing takes place via the customer for us. The processed goods are for hedging purposes only to the value of the reserved goods.
In the case of processing with other goods not belonging to us by the customer, co-ownership of the new object is due to us in the ratio of the value of the reserved goods to the other processed objects at the time of processing. These clauses apply accordingly to the new object arising from this processing.
The claims of the customer from the further sale of the reserved goods are ceded to us now, regardless of whether the reserved goods are sold on without or after processing or whether they are sold on to one or several customers. The ceded claim only hedges us to the amount of the value of the respectively sold reserved goods.
Where reserved goods are sold by the customer together with other goods which do not belong to us, whether without or after processing, the cession of the purchase price claim only applies to the value of the reserved goods which is an object of this purchasing contract or part of the purchasing object together with the other goods.
The customer is only entitled and empowered to sell on and to resell the reserved goods with the proviso that the purchase price claim from the reselling is transferred to us. The customer is not entitled to other ordinances in relation to the reserved goods. Despite the cession, the customer is entitled to collect the claims from the reselling. Our right to collection remains unaffected by the customer’s authority to collect. However, we shall not collect the claim ourselves as long as the customer properly complies with his payment obligations. At our request, the customer must notify his debtor of the assigned claim and report the cession to the debtor.
The retention of title according to the foregoing conditions remains in force even if individual claims are received into an open account and the balance is drawn and acknowledged. Our retention of title is conditional to the extent that ownership to the reserved goods is transferred to the customer with full payment of all of our claims from the business relationship and the ceded claims are due to the customer. We undertake to release the securities due to us according to the foregoing conditions to the extent that the value of the claims to be hedged exceeds 20 %, with the proviso that with the exception of the delivery in a real current account ratio, approval only needs to be made for such deliveries or their substitute values which themselves are fully paid.
As long as a retention of title exists, pledging or a security transfer is not permitted. In the case of operations by creditors of the customer, in particular in the case of pledges, the customer must notify us immediately by registered letter (registered letter with advice of receipt) and bear the costs of measures to rectify the operation, in particular intervention processes, if they cannot be collected from the counterparty.
The customer must handle goods subject to retention of title carefully and store them free of charge.
In the case of infringement of the obligation for careful handling or other duties of care and in the case of payment arrears of two part payments, we are permitted to demand back the delivery in deviation from Section 449 II of the German Civil Code (BGB) until complete payment of the claim.

8. Payment
Unless agreed otherwise, the invoice amounts are due for payment on handover or, where we have undertaken these tasks, after installation on delivery notification. Payment arrears are incurred two weeks after receipt of our invoice. If the customer claims not to have received the invoice, payment arrears of the agreed price are incurred 21 days after delivery of the goods or, if applicable, installation of the goods by us at the customer’s premises.

9. Withdrawal from the contract by us
If, despite advance expert verification, it transpires during proper processing that the order cannot be executed in the present form, we can withdraw from the contract unless the customer agrees to a possible amendment to the contract. In the case of such a withdrawal from the contract, the customer only has a claim to free-of-charge return of the object handed over for processing in the respective state, for example.
We are also entitled to withdraw from the contract if we receive unfavorable infor-mation about the assets or the business practices of the customer, the customer ceases or reduces his payments or an application is made for insolvency proceed-ings in relation to his assets.
If we utilize the aforementioned withdrawal right due to personal relationships of the customer, the customer must return goods already received to our factory at his own expense without delay on request, alternatively we are permitted to dismantle and remove the goods at the customer’s premises, the customer grants us the irrevoca-ble domiciliary right in this regard. Furthermore, as compensation for our expenses, the customer owes us transfer of use or value depreciation at a flat rate of 20 % of the invoice net amount plus statutory value-added tax, whereby we retain the right to assert further claims for compensation. The customer reserves the right to furnish proof that expenditure or a depreciation of value did not occur or were considerably less than the foregoing flat-rate amount.

10. Guarantee in the case of defects on newly manufactured facilities
Defective components or services must be rectified free of charge, resupplied or re-performed at our discretion, insofar as the cause of the defects was present at the time of transfer of risk.
Claims for subsequent fulfilment lapse 12 months after statutory commencement of the limitation period, the same applies to withdrawal and loss. This timeframe shall not apply where the law according to Sections 438 Para. 1 No. 2 (Construction Work and Objects for Construction Work), 479 Para. 1 (Right of Recourse) and 634a Para. 1 No. 2 (Construction Defects) of the German Civil Code (BGB) prescribes longer timeframes and in the case of intent, fraudulent concealment and non-compliance with a quality guarantee. The legal regulations on expiry suspension, suspension and recommencement of the timeframes remain unaffected.
The customer is obliged to verify all functions of the item supplied directly on hando-ver. The customer is obliged to notify apparent defects within a timeframe of 8 working days of receipt of the object supplied in writing; otherwise, the assertion of warranty claims is precluded. This excludes defects which were not ascertainable during careful examination and/or in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee.
In the case of notices of defects, customer payments may be retained to a reasona-ble extent compared to the material defects occurring. The customer may only retain payments if a notice of defect is asserted, the legitimacy of which cannot be called into question. A retention right of the customer does not exist if his defect claims have lapsed. If the notice of defects was unjustified, we are entitled to claim compen-sation from the customer in respect of the expenses incurred.
We must be given an opportunity for subsequent fulfilment within a reasonable period.
If subsequent fulfilment fails on two occasions, the customer can withdraw from the contract or reduce payment, regardless of any compensation claims according to the following conditions.
Claims for defects cease to apply in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment to the usability, in the case of natural wear or defects which arise after transfer of risk as a result of incorrect or negligent handling, excess stress, unsuitable equipment, unsuitable building plots or which arise as a result of particular external influences which are not pre-supposed according to the contract and in the case of non-reproducible software errors. If modifications or repair work are undertaken incorrectly by the customer or third parties, no claims for defects may be made for this and the consequences arising.
Customer compensation claims due to a material defect are solely guaranteed according to Figure 12. This does not apply in the case of fraudulent concealment of the defect, non-compliance with a quality guarantee, loss of life, bodily harm, injury or illness or loss of liberty and in the case of fraudulent or grossly negligent infringement of obligations.
Only the contractual product description (in our written order confirmation) explicitly agreed in writing applies to the quality of goods. Guarantee and/or warranty promises are only guaranteed according to Figure 13. Public statements, recommendations or advertising do not constitute quality specifications for the goods for contractual purposes.
Information in installation checklists only describes a general state without being tailored to specific conditions of the respective customer.
If our customer receives an installation checklist which is inadequate for him, we are only obliged to subsequently improve the installation checklist.
A change to the burden of proof to the detriment of the customer is not associated with the foregoing regulations. Further claims of the customer or claims other than those governed in this Figure 10 due to a material defect are precluded.

11. Guarantee in the case of used facilities, functional guarantee
In the sale of used facilities, the functional guarantee for the facility is precluded unless we accept responsibility explicitly and in writing for the functioning of the facility (functional guarantee/warranty promise) which is restricted where applicable to the facilities working correctly at the time of commissioning. We shall then bear the guarantee for fulfilment of this obligation according to Fig 10 accordingly. Commis-sioning takes place in the presence of the customer. The guarantee is precluded for functional defects occurring after commissioning.

12. Guarantee for repair and maintenance work
12.1
The following defect claims apply for repair work not performed within the scope of the warranty or guarantee or a separate ongoing maintenance contract.
a) Defects must be notified to us in writing without delay; however, recognizable defects must be notified at the latest within 14 days of commissioning of the facility on which work has been undertaken; where trial operation is agreed, following perfect trial operation.
b) Defect claims lapse after one year. Limitation commences with commission-ing of the facility on which work has been carried out; where trial operation is agreed, following perfect trial operation. If commissioning or ending of the agreed trial operation is delayed by more than 14 days due to circumstances for which we are not responsible, the guarantee is reduced for the duration of the delay.
c) For subsequent fulfilment, the customer must grant us the necessary time and opportunity to an appropriate extent. If he refuses this we are released from subsequent fulfilment.
d) If we allow an appropriate subsequent fulfilment period to lapse without suc-cess, without rectifying the defect, subsequent improvement is refused or does not lead to defect rectification and we cannot expect the customer to provide a further subsequent improvement, the customer is entitled to reduce payment by means of a declaration to us, withdrawal is precluded.
e) The claims for defects cease to apply if the object of work has suffered from improper handling or if modifications or repairs have been undertaken on it without our written consent and the modifications or repairs have led to the defect.

12.2
The Agent is only liable for erroneous work carried out by staff provided by the customer if he has given incorrect instructions or has infringed his supervisory obligation.

13. Liability for compensation
We are only liable for compensation in the case of our own gross negligence and intent and the gross negligence and intent of our legal representatives, trade repre-sentatives and vicarious agents.
The personal liability for compensation of these legal representatives and vicarious agents towards customers is also only guaranteed in the case of gross negligence and intent. Our liability and that of our legal representatives and vicarious agents towards customers is precluded in principle in the case of slight negligence.
The foregoing liability restrictions do not apply in the case of liability due to a guaran-tee made (where agreed in deviation from Figure 13), procurement risks assumed, loss of life, bodily harm, injury or illness or crucial contractual obligations. Crucial contractual obligations are the obligations, the fulfilment of which enables proper contract performance and on whose compliance with the customer can regularly rely.
Compensation claims of the customer against us, our legal representatives and our vicarious agents due to infringement of crucial contractual obligations are limited both to foreseeable damage typical of the contract and also in relation to the amount to an amount of 30 % of the net price total agreed for the service on which the damage event is based, insofar as no liability is present due to intent, gross negligence, guarantees made (where agreed in deviation from Figure 13), assumed procurement risk or loss of life, bodily harm, injury or illness or loss of liberty.
A change to the burden of proof to the detriment of the customer is not associated with the foregoing regulations.

14. Guarantee promise and warranty promise
If and insofar as we give a guarantee promise or a warranty promise to the customer for a 3-year period after delivery of the goods due to a special agreement based on an individual contract, this guarantee/warranty promise must only involve extension of the period cited in Fig. 10. The mutual rights and obligations resulting from the guarantee / warranty promise are also exhaustively governed in Fig. 10. Withdrawal is precluded after expiry of the 1-year warranty obligation according to Fig. 10; the purchase price reduction is then limited to a maximum of 20 % of the purchase price. Compensation claims from guarantee/warranty promises are limited according to Figure 12.

15. Software use
Where software is contained in the scope of supply, the customer is conceded a non-exclusive right to use the supplied software. It is conceded for use only on the intended item supplied. Use of the software on more than one system is prohibited. Any further utilization of the software is prohibited.
All rights to the software and the documentation, including the copies, are reserved by us. The issuing of sub-licenses is not permitted.

16. Offsetting, retention right, assignment prohibition
Offsetting our claims with counterclaims of the customer is precluded, unless it involves an undisputed, acknowledged or legally binding claim.
Payment refusal and retention rights of the customer are precluded if they are not based on the same contractual relationship.
Assignment of any claims made against us is in principle only effective with our consent granted in writing.
Should the foregoing reservation of approval with regard to Section 354 a of the German Civil Code (HGB) or other legal grounds be ineffective, the customer is obliged to provide written notification of the assignment eight days before signature of the contract of assignment. Notification of the planned assignment must be by registered letter with an advice of receipt.

17. Data protection
The customer is informed according to Section 26 of the Data Protection Act that the data required within the scope of invoicing and other order processing tasks is processed and stored by computers.
18. Place of fulfilment, applicable law, place of jurisdiction
The following conditions apply if the customer is a registered trader, a Iegal entity under public law or a special fund under public administrative law:
The place of fulfilment for deliveries is 56745 Bell and the place of fulfilment for installation work is the respective installation site.
Solely the law applicable in the Federal Republic of Germany applies to all contrac-tual and extra-contractual disputes to the preclusion of any interstate conflict laws and to the preclusion of the United Nations Convention on Contracts for the Interna-tional Sale of Goods.
The courts at our headquarters in 56745 Bell are solely responsible for all contractual and extra-contractual disputes, locally and internationally. This responsibility also includes in particular any other responsibility provided for by law due to a personal or material correlation. Neither is the customer entitled to bring a counterclaim, an offsetting or a right of retention against us in any other court than that at our head-quarters in 56745 Bell. However, we are entitled to lodge a complaint at the business headquarters of the customer or at other courts responsible on the basis of domestic or foreign law.

 

The EU Commission’s online dispute resolution platform can be found at:
https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home.show&lng=EN
We are not willing or obliged to participate in dispute settlement procedures under the Consumer Dispute Settlement Act.

 

Karl Heuft GmbH
Heuft Thermo-Oel GmbH & Co KG,
Last revised November 2016

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