General Terms and Conditions of Hangcha Europe GmbH HE
Mariechen-Graulich-Straße 12a, 65439 Flörsheim am Main
These conditions apply to all sales and work contracts including advice and other contractual services by HE. The purchasing conditions of the customer, changes or deviations from these delivery conditions or side agreements are only binding for HE insofar as HE has confirmed them in writing.
II. Conclusion of the contract
The written order confirmation is decisive for the obligation of both parties and for the content of the order. If the customer has set a deadline for accepting an offer, a contract will only come into existence if it is accepted in due time. In the event that the customer does not accept the order on time or does not agree, the contract will only come into effect with the written, corresponding order confirmation. The customer is bound to orders for 4 weeks. The period begins on the day HE receives the order letter.
III. Delivery and services
The documents belonging to the offer such as images and drawings, weight and dimensions such as speeds, fuel consumption and operating costs are approximate values with a tolerance range and do not constitute a guarantee of quality.
The nature of the delivery items results from the contract. It is not guaranteed. Deviations must be made in writing. The customer must point out in writing any application or environmental conditions (e.g. special environmental and location requirements) that deviate from the standard conditions of the sales documents. In the absence of such a notice, the aforementioned standard conditions of HE are authoritative.
Costs, drawings and technical documents or other technical information may not be used without the consent of HE, except for the installation, commissioning, use and maintenance of the delivery item.
IV. Prices and Payments
Unless otherwise agreed, the prices for the delivery item are ex warehouse plus statutory sales tax, including loading in the warehouse, but without packaging. HE is entitled to increase the price up to the amount of the new sales price if the sales prices relevant for the customer change before delivery.
2. Due date
If no special agreements have been made, the price is to be paid immediately net without any deduction and upon acceptance of the goods. The costs of discounting and collection, in particular of bills of exchange and checks, are to be borne by the customer. If an agreed payment date is exceeded, the statutory interest due until default occurs and then the statutory default interest will be charged without the need for a reminder. In the event of default, HE is entitled to charge a reminder fee of ten euros for each reminder. The right to claim further damage caused by default remains reserved.
3. Default in Payment.
A right of retention of the customer due to contested and not legally established counterclaims as well as the offsetting thereof is excluded.
HE is entitled, if HE has to fear that it will not receive the purchase price from the customer on time or in full, to refuse the contractual obligation by raising the objection of uncertainty until the due consideration has been effected or security has been provided. If the customer has not provided the consideration or provided security within a reasonable period communicated in writing, HE can withdraw from the contract.
HE is also entitled to withdraw from the contract after a reasonable period of time communicated in writing if the customer does not make the agreed down payment on time or seriously and definitively refuses to accept the ordered goods. In the event of withdrawal, HE is also entitled to demand compensation for damages including lost profit in the amount of at least 20% of the purchase price, unless the damage is demonstrably less.
4. Sales taxation
Sales tax is based on the applicable sales tax law. In the case of cross-border deliveries, HE will make use of the existing tax exemption options. In the case of cross-border deliveries within the EU, the customer undertakes to inform HE immediately of the corresponding sales tax identification number.
He participates in the additional evidence required to obtain a tax exemption under German or foreign sales tax law to the extent necessary. German or foreign sales tax to be paid by HE will be invoiced in addition to the net price and must be borne by the customer. If sales tax arises due to payments made prior to the delivery (service), the sales tax will be invoiced separately. The sales tax is due and payable together with the net price.
V. Delivery time
The delivery period begins with the dispatch of the order confirmation, but not before all documents to be procured by the customer have been received and all technical details have been clarified.
The delivery period is met if the delivery item is available for acceptance from the warehouse or readiness for dispatch has been notified by the time it expires. Compliance with the delivery deadline requires the customer to fulfill his contractual and cooperation obligations.
The delivery period is extended appropriately in the event of industrial action, in particular strikes and lockouts, as well as in the event of unforeseen obstacles.
(e.g. operational disruptions, official interventions, confiscation, energy supply difficulties, war, insurrection, embargo, requisition and natural disasters) that can be shown to have a significant influence on the completion of the delivery of the delivery item. This also applies if the circumstances arise with sub-suppliers. HE is also not responsible for the aforementioned circumstances if they arise during an already existing delay. In important cases, HE will notify the customer as soon as possible of the beginning and end of such hindrances. If the shipment is delayed at the request of the customer, the costs incurred by the storage will be charged to him, beginning one week after notification of readiness for shipment, in the case of storage in the warehouse at least 0.5% of the invoice amount for each commenced month, whereby the assertion of higher storage costs remains reserved. The customer is permitted to prove lower costs for the storage of the delivery items. However, HE is entitled to otherwise dispose of the delivery items after setting a reasonable deadline in writing and to deliver again to the customer after the delay has expired on the basis of the agreed delivery conditions and by agreeing a new delivery period.
VI. Transfer of risk
The delivery takes place from stock, either by acceptance or by dispatch. If the customer or an authorized representative of the customer does not accept the delivery on the specified delivery date, which must be declared to HE at least one week before this date, HE is deemed to be authorized to ship the delivery item at the customer's expense and risk. In the event of acceptance or dispatch, the risk is transferred to the purchaser if the delivery item has been handed over by HE to the purchaser or his agent or transport company or forwarding agent.
If the dispatch is delayed due to circumstances for which the customer is responsible, the risk is transferred to the customer on the day of notification of readiness for dispatch. The risk is also transferred to the customer when the goods are dispatched if partial deliveries are made or HE has taken on other services (e.g. dispatch, delivery, bringing in, installation, assembly or instruction). The dispatch takes place in principle for the account of the customer. The customer also bears the risk if he is in default of accepting the delivery items. Delivered items are, even if they have defects, by the customer without prejudice to the rights according to §VIII. to accept these terms of delivery, provided that these defects are not significant. In the absence of a special agreement, the delivery clause “ex works” applies.
VII. Retention of title
1. HE reserves title to the delivery items until all payments from the business relationship with the customer have been received. In the case of a payment agreement in the check / bill of exchange procedure, the reservation extends to the redemption of the bill of exchange accepted by HE by the purchaser and does not expire when the check received is credited to HE. The retention of title continues to exist even if the claims are included in a current invoice and the balance has been drawn and recognized.
2. The customer is obliged to treat the delivery items with care and to carry out any repair, maintenance and inspection work in good time at his own expense. HE is entitled to insure the reserved goods against theft, machine breakdown, water, fire and other damage, unless the customer can be shown to have taken out the insurance himself.
3. The customer may neither pledge the delivery items nor assign them as security.
4. The customer must notify HE immediately of any seizures, confiscations or other dispositions by third parties. The costs of eliminating such measures are borne by the customer.
5. The customer is entitled to resell the delivery items in the ordinary course of business under retention of title or to allow third parties to use them for a fee. He already now assigns all claims against his customers or third parties from the resale or transfer of use to HE in the amount of the gross invoice amount of the first sale of the reserved goods plus 20%, regardless of whether the delivery items are passed on without or after processing and without any further processing special declaration of assignment is required in individual cases. HE accepts this assignment. The customer remains authorized to collect this claim even after the assignment. HE's authority to collect the claim itself remains unaffected by this, but HE will not make use of this authority if the customer fulfills his payment obligations towards HE, is not in default of payment and, in particular, no application has been made to open insolvency proceedings against the customer or payment has been suspended.
As of the delay in payment, HE can demand that the amounts due to HE be paid into an escrow account named by HE. HE can also demand that the purchaser's debtors make payments to HE and that the purchaser for this purpose identifies the debtors of the assigned claim to HE and discloses the assignment to these debtors.
6. If the claim from the resale cannot be assigned in the aforementioned scope because the claim falls under a current account agreement between the customer and his customer, the balance from the current account relationship is deemed to be assigned after the netting, as far as the claim from the resale after the above provisions are assigned.
7. If the customer processes, combines, mixes or blends the reserved goods with other goods not belonging to HE, HE is entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other processed goods. The same applies to the new item as it does to the reserved goods. They are deemed to be reserved goods in the sense of these terms and conditions.
8. Security due to HE which exceeds the value of the claims to be secured by more than 20% shall revert to the purchaser. (release clause in rem)
9. In the event of breach of contract by the purchaser, in particular in the event of default in payment, HE is entitled to take back the goods after a written warning and the purchaser is obliged to surrender them, without the withdrawal automatically meaning withdrawal from the delivery contract. In this case the delivery period is suspended. HE reserves the right to supply the customer with renewed validity and continuation of the agreed delivery period after removal of the obstacle to performance or provision of a security.
10. If the right in whose area the delivery items are located does not permit the above security agreement, but allows HE to reserve other rights to the delivery item, HE can exercise all rights of this type.
11. The customer is obliged to cooperate in measures taken by HE to protect the right of ownership or to take another right to the delivery item in its place.
VIII. Liability for material defects, limitation of warranty.
1. Warranty period
HE provides a guarantee for material defects in the delivery items that exist at the time of the transfer of risk and for repairs carried out for a period of 12 months, but no longer than 1800 operating hours. If the takeover or the dispatch is delayed through no fault of HE, the warranty expires no later than 12 months after the transfer of risk.
There is no separate warranty period for repairs and replacement deliveries within the scope of the warranty; the warranty period remains for the original delivery destination. However, the warranty period is extended by the duration of the business interruption caused by the repair or replacement delivery.
No guarantee is given for used items.
2. Obligation to examine
The assertion of material defect claims by the purchaser - with the exception of those arising from contracts for work and services - presupposes that the purchaser has properly complied with his obligation to examine and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB). Any material defects found must be reported to HE immediately in writing by the purchaser.
3. Scope of warranty
If the delivery item does not correspond to the agreed quality upon transfer of risk, the purchaser's claim for supplementary performance includes, at HE's option, the free replacement delivery or the free rework of those parts that are unusable or more than insignificantly impaired in their usability.
In order to carry out all remedial measures or replacement deliveries that appear necessary at reasonable discretion, the customer must always grant the necessary time and opportunity after consulting HE; otherwise HE is released from subsequent performance.
In the case of supplementary performance, HE bears all necessary and reasonable expenses, in particular transport, travel, labor and material costs. This does not apply to additional expenses that have arisen because the delivery items are brought to a location other than the contractual place of performance. The rework is carried out at HE's option in its own workshop or at the end customer's. If the repair does not take place in HE's own workshop at the request of the customer, the costs for the dispatch of specialist personnel are at the customer’s expense. Replaced parts become the property of HE.
4. Ancillary commitment
If, through the fault of HE, the delivered item cannot be used in accordance with the contract by the customer as a result of neglected or faulty advice given before or after the conclusion of the contract and as a result of the breach of other contractual secondary obligations - in particular instructions for the operation and maintenance of the delivery item - further claims by the customer shall apply to the exclusion of further claims VIII and IX of these delivery conditions.
5. Limitations of Liability
No guarantee is given for material defects caused by
- Improper use
- The use of oils and operating fluids with unsuitable specifications
have been caused. HE does not accept any liability for wear parts or for damage caused by natural wear and tear.
IX. Right of the customer to withdraw from the contract or to reduce the price and other liability.
1. Obstacles to performance
The customer can withdraw from the contract if HE is finally unable to perform the entire service before the transfer of risk. If HE is obviously only temporarily prevented from performing, the customer is only entitled to withdraw from the contract if HE does not deliver within a reasonable period of time after the obstacle to performance has ceased to exist.
2. Partial delivery
The customer can also withdraw from the contract if, when ordering similar delivery items, the execution of part of the delivery becomes impossible and he has a legitimate interest in rejecting a partial delivery. If this is not the case, the customer can reduce the consideration accordingly. When determining the reduction in value, Section 441 (3) of the German Civil Code (BGB) must be observed, with the purchaser's interest in use being decisive for the reduction in value.
If the impossibility occurs during the delay in acceptance or through the fault of the customer, the customer remains obliged to provide consideration.
3. Failed supplementary performance
The customer also has the right to withdraw from the contract,
- If HE allows a reasonable period in writing for supplementary performance due to a defect within the meaning of the delivery conditions to elapse without result. The deadline for subsequent performance is to be set in such a way that it takes into account any order and delivery deadlines for necessary spare parts for the implementation of the subsequent improvement or
- If the supplementary performance has finally failed, whereby at least two attempts are to be allowed.
- In the aforementioned cases, the customer can, at his option, request a corresponding reduction in the purchase price instead of withdrawing from the contract.
If, after completion of the supplementary performance, there are still defects that are not significant, which can be assumed to be rebuttable, if the delivery items are still suitable for the appropriate use, the right of withdrawal of the customer is excluded. In this case, the customer has the right to reduce the price. For the determination of the decrease in value, §441 BGB applies, whereby the interest in use of the customer is decisive for the decrease in value.
5. Disclaimer of Liability
All further claims of the customer - for whatever legal reasons - as well as compensation for damage of any kind, including damage that did not occur on the delivery item itself (e.g. loss of use and production, lost profit or other consequential damage), are excluded. This exclusion of liability does not apply in the event of intent or gross negligence on the part of HE or in the event of culpable breach of essential contractual obligations. In the event of culpable breach of essential contractual obligations, HE shall only be liable for typical, reasonably foreseeable damage, except in cases of willful intent and gross negligence.
X. Applicable Law
German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
XI. Place of jurisdiction and place of performance
For all disputes arising from the contractual relationship, also for bill of exchange and check processes, for proceedings due to the issuance of an arrest or injunction, which is the responsibility of the civil courts in Flörsheim.
The place of performance for the services to be provided by both parties is Flörsheim.