General Terms and Conditions

General Terms and Conditions of Delivery and Payment of the HBI EUROPE GmbH (hereafter: HBI)
Valid August 2022

5.4  The buyer must fulfil any labelling requirements, especially for warning and tax notices. On HBI’s request, the buyer must provide according proof and information.

6. Payment
6.1   Unless agreed otherwise, payments must be made net cash immediately as of invoicing. If the buyer does not pay within 30 days of receiving the invoice, he will be in default, unless the payment is not made due to of circumstances for which he is not responsible.

6.2   If the buyer defaults on a payment, HBI may charge default interest of 9% above the base rate p.a. as of the default date for the purchase price. The assertion of further damages is not excluded thereby.

6.3   HBI may, even in case of contrary terms and conditions of the buyer, use payments to first offset older debts and will notify the buyer about the type of offsetting in such cases. If costs and interest have already been generated, HBI may use the payments to first offset the costs, then the interest and finally the main claim. HBI will consider the legitimate interests of the buyer for any offsetting or crediting in the sense of Section 6.3.

6.4   Payments are only made after HBI can dispose of the payment amount. Bills of exchange or checks will only be accepted if agreed contractually and only on account of performance. Discounting and collection costs will be borne by the buyer. For payments in currencies other than Euros, claims will only be considered settled if the foreign currency payment corresponds to the agreed Euro amount on the day the payment is received, i.e., when it is credited to HBI’s account.

6.5   The buyer may only exercise offsetting, retention or reduction rights if his counterclaims have been legally established or are uncontested. However, the buyer may also exercise rights of retention for counterclaims under the same contractual relationship if the counterclaims are not payment claims.

6.6   Should HBI learn of circumstances that draw the buyer’s creditworthiness into question, especially if a check is not cashed or if the buyer suspends his payments or if other circumstances become known that cast doubt on the buyer’s creditworthiness, HBI may demand immediate settlement of all remaining debts. This also applies if HBI accepted checks. Furthermore, HBI may demand advance payments and collateral in such cases.

7. Delivery and Acceptance Obligations
7.1   The delivery times stated for our offers are non-binding for us. Delivery dates or periods that may be bindingly agreed require our express confirmation in writing.

7.2   Delivery dates refer to the order confirmation date by HBI if all commercial and other requirements for the fulfilment of the order are clarified with the buyer, documents to be provided the buyer are received by HBI, required permits or approvals have been granted and if agreed down payments have been credited to a bank account of HBI.

7.3   In case of binding periods or dates, HBI will not be liable for delivery or service delays due to force majeure or events that hinder or prevent HBI’s deliveries without HBI being at fault—especially including strikes, lockouts, official orders, etc., even if they occur at HBI’s pre-suppliers or their sub-suppliers. In such cases, HBI may delay the delivery or service for the time of the disruption plus a reasonable start-up period or may fully or partially withdraw from the contract for the non-fulfilled part, though any payments already made must be refunded without delay. If the disruption lasts longer than three months, the buyer may, after an appropriate grace period, withdraw from the contract for the unfulfilled service, though any payments already made must also be refunded without delay. If the delivery period is extended or if HBI is released from its obligations, the buyer cannot derive any damage claims thereby.

7.4   The buyer must accept the goods. Defects claims for delivered goods remain unaffected. Acceptance obligations do not apply if the defectiveness represents a violation of an essential contractual obligation or if, due to the characteristics of the goods, defects produce dangers of material or personal damages.

7.5   If the buyer delays the shipping of the goods or fails to perform a required removal, HBI may store the goods at its discretion and for the buyer’s account as of the 14th day of indicating shipping readiness and may invoice the goods as delivered ex works and charge the storage costs to the buyer, i.e., in case of storage at the warehouse, though at least 0.5% of the goods‘ value (invoice amount) for each month that begins as of the shipping readiness date. The above-stated damage compensation only applies if the buyer does not prove that fewer damages were incurred. Apart from that, HBI may assert greater costs by providing according proof. In addition, after an appropriate period, HBI may dispose of the goods otherwise or provide other deliveries to the buyer.

7.6   Section 11 of these General Terms and Conditions of Delivery and Payment applies in case of damage claims due to late deliveries.

8. Risk Bearing
8.1   The place of fulfilment for any deliveries is Erkelenz, Germany, unless confirmed otherwise by HBI in writing in the order confirmation. Risk is transferred to the freight carrier upon the handover of the goods, including if the transport is performed by HBI.

8.2   If the goods are ready to be shipped or if their shipment is delayed for reasons for which HBI is not responsible, risk will be transferred to the buyer when HBI notifies the buyer about shipping readiness orally or in writing.

8.3   In case of cross-border contracts, the „FCA“ clause of Incoterms 2020 of the Paris International Chamber of Commerce, ICC, will apply.

9. Retention of Title
9.1  HBI will retain title to any delivered goods until all claims from the business relationship between HBI and the buyer have been fully settled. Including individual claims in a current account relationship, current accounting and account balancing and recognition thereof do not affect retention of title. In case of non-contractual conduct by the buyer, especially through payment default, HBI may redeem the goods in which case the buyer must return the goods after HBI withdraws from the contract. Goods to which HBI is entitled to (partial) ownership will be described as reserved goods hereafter.

9.2  The buyer must provide appropriate insurance for the reserved goods against common risks, especially fire, burglaries and water damage, and must treat and store the reserved goods diligently.

9.3  In case of third-party access, the buyer must note HBI’s ownership and notify HBI without delay.

9.4  The buyer may sell the reserved goods through the ordinary course of business if he is not in default. Pledges and assignments are prohibited. The buyer already hereby fully assigns any claims resulting from sales or other legal reasons (insurance, unlawful acts) regarding the reserved goods (including any balance claims from current account) to HBI. HBI revocably authorises the buyer to collect the claims assigned to HBI for HBI’s account in its name. This debt collection authority may be withdrawn if the buyer fails to fulfil his payment obligations.

9.5  Any processing or redesigning of the reserved goods must be performed for HBI as the producer. If (co-)ownership ends through a combination, it shall hereby be agreed that the (co-)ownership of the contract partner to the uniform item shall be transferred to HBI according to its (invoice) value. The buyer must store the (co-)owned goods for HBI free of charge.

10. Guarantee
10.1  Section 377 of the German Commercial Code [Handelsgesetzbuch, HGB] applies to the buyer’s examination and notification obligation for our deliveries. The buyer must inspect the delivered goods for any defects or damages and the characteristics of the goods without delay. Any defects must be reported in writing without delay. Obvious defects must be reported within 2 weeks of receipt of the delivery. Non-obvious defects must be reported within 2 weeks of their discovery. If defects are reported late, any defect liability is excluded. Defect reports must include which defects were discovered and if the defects were noticed immediately or only after further processing of the goods. HBI may have reported defects reviewed by its own employees. On HBI’s request, the reported goods must be returned to us in their delivered condition for review.

10.2  Guarantee claims do not apply in case of improper use, faulty installation, incorrect operation or non-compliance with regulations. Guarantee claims also do not apply if the buyer makes changes to the delivery object without HBI’s prior written permission.

10.3  The guarantee period for defect claims lasts one year and commences on the delivery date or, in case of work service contracts, upon the acceptance of the work.

10.4  If legitimate defects are reported in time, we must offer rectification by, at our discretion, remedying the delivered goods or, if service contract law applies, providing a replacement delivery free of charge. If rectification is not possible or unreasonable, we may, at our discretion, also credit the reduced value or redeem the goods for a refund of the purchase price.

11. Liability Limitation
11.1  HBI’s liability for damages, for whatever legal reason, especially due to impossible, delayed, defective or incorrect deliveries, breaches of contract, violations of duty during contractual negotiations or unlawful acts, is, when based on culpability, limited by this Section 11.

11.2  HBI will not be liable for simple negligence of its bodies, legal representatives, employees or other vicarious agents, unless for breaches of essential contractual obligations. Essential contractual obligations are obligations for delivering and installing delivery objects on time, the freedom of delivery objects from defects that limit functionality or suitability more than insignificantly and consultation, protection and care duties that enable contractual use of the delivery object for the buyer or that protect life and limb of the buyer’s staff or the buyer’s property from significant damage.

11.3  If HBI is liable for damages under Section 11.2, this liability is limited to damages that HBI foresaw during contract negotiations as a potential result of contractual violations or should have foreseen when practicing due diligence. Replacement will only be provided for indirect damages and subsequent damages due to defects of the delivery object that are typically to be expected through proper use of the delivery object.

11.4  In case of liability for simple negligence, HBI’s liability for damages and resulting asset damages is limited to EUR 1,000,000.00 per damage case (according to the respectively current coverage of its product liability insurance or liability insurance), including for breaches of essential contractual obligations.

11.5  The above-stated liability exclusions and limitations apply equally to HBI’s bodies, legal representatives, employees and other vicarious agents.

11.6  If HBI provides technical information or consultation and if this information or consultation is not part of HBI’s owed and contractually agreed service scope, this information or consultation will be provided free of charge under exclusion of any liability.

11.7  The limitations of this Section 11 do not apply to HBI’s liability for intent, guaranteed characteristics, injuries to life, limb or health or under the German Product Liability Act [Produkthaftungsgesetz, ProdHaftG].

11.8  If HBI does not provide proof of the conclusion of a congruent hedging transaction during contract conclusion, HBI will not be liable if goods are not supplied on time due to pre-supplier delivery disruptions for which HBI is not responsible and that prevent deliveries from being made to the buyer in accordance with the contract.

12. Service Refusal

If a contract is not performed due to non-contractual conduct of the buyer, the buyer must pay a contractual penalty for the amount of damages incurred by HBI, though at least for 25% of the gross value of the ordered goods. This flat rate of 25% only applies if the buyer does not prove that fewer damages were incurred. If HBI withdraws from a concluded contract for a legitimate reason, the buyer must bear the resulting costs.

13. Liability for Property Rights Infringements
13.1  Unless noted separately by HBI, delivery objects are free of third-party rights in the Federal Republic of Germany to the best of HBI’s knowledge.
Should a delivery object or part thereof nonetheless, at the time of contract conclusion, infringe on property rights already granted or published in the Federal Republic of Germany or, if certain procedural law expressly applies to the delivery object, procedural laws resulting in legal action against the buyer, HBI will, at its discretion and expense and within an appropriate period, either obtain further usage rights for the buyer or alter the delivery object or respective part thereof or procedure so that third-party property rights are no longer infringed or HBI will withdraw from the contract.

13.2  If delivery objects are produced on the basis of drawings, drafts or models of or equivalent descriptions or specifications by the buyer, HBI must be held harmless of any third-party claims due to alleged or actual rights violations.

13.3  The buyer must notify HBI in writing without delay about any claims alleged or asserted by third parties. The buyer may not recognise infringements without HBI’s permission. Any defensive measures and settlement negotiations remain reserved to HBI. In case of usage suspension of the delivery object by the buyer, the buyer must note to the third party that usage suspensions do not entail recognition of property rights infringements.

13.4  Apart from that, Sections 10 & 11 of these General Terms and Conditions of Delivery and Payment apply.

14. Applicable Law, Place of Fulfilment, Place of Jurisdiction and Partial Invalidity
14.1  The entire legal relationship between HBI and the buyer is governed by German law.

14.2  The UN sales convention (CISG) is excluded.

14.3  The place of fulfilment for any mutual obligations is HBI’s registered office in Erkelenz, Germany.

14.4  The exclusive place of jurisdiction for any disputes resulting directly or indirectly from the contractual relationship is Aachen, Germany. However, we may also sue at the buyer’s general place of jurisdiction.

14.5  Should a regulation of these General Terms and Condition of Delivery and Payment or of another agreement be or become invalid, the validity of the remaining regulations or agreements will not be affected thereby.

15. Confidentiality
Both parties must maintain confidentiality and may not disclose to third parties any trade or industrial secrets of the other side of which the parties learn through contract performance. The parties must subject any third parties commissioned by them for the execution of orders to these obligations.

16. Translations
If HBI decides to offer these General Terms and Conditions of Delivery and Payment in other languages, this is merely done as a courtesy to the buyer. HBI will not be liable for any deviations from regulations of these General Terms and Conditions of Delivery and Payment in translations into languages other than German. In case of conflicts or contradictions, the German version of these General Terms and Conditions will always take precedence.