General Terms and Conditions of Delivery- and Payment of the HBI EUROPE GmbH (hereafter: HBI)
Valid September 2024
1. Scope of application
1.1 The following General Terms and Conditions of Delivery and Payment apply to all business relationships with companies in the course of their business and with legal entities under public law, including special funds under public law, and with HBI EUROPE GmbH (hereinafter referred to as HBI).
1.2 Our deliveries, services and offers are provided exclusively on the basis of these General Terms and Conditions of Delivery and Payment. These also apply to future business relationships and are deemed to have been accepted at the latest upon receipt of the goods or services, without us having to refer to them again in each individual case.
1.3 Amendments or supplements to these General Terms and Conditions of Delivery and Payment must be made in writing. The same applies to deviations from the requirement of the written form.
1.4 We hereby expressly object to the validity of the contractual partner’s terms and conditions. This also applies if the contractual partner refers to his terms and conditions or terms and conditions of purchase by means of counter-confirmations or in any other way. Deviations from our general terms and conditions of delivery and payment are only effective if they are confirmed by us in writing.
2. Offers and conclusion of contract
2.1 Offers from HBI are subject to change and non-binding, unless otherwise expressly confirmed in writing. All orders and declarations of acceptance require written confirmation by HBI to be legally effective. This also applies to additions, changes or ancillary agreements. HBI employees are not authorised to make verbal ancillary agreements or to give verbal assurances that go beyond the content of the written contract.
2.2 Information in brochures, catalogues, price lists or other specifications is non-binding, unless otherwise expressly agreed in writing.
2.3 The contract is considered concluded when HBI sends a written declaration (order confirmation), which alone is decisive for the scope of performance obligations. If there is no order confirmation, the scope of services is determined by the offer that was accepted by the customer in due time. The delivery replaces the written order confirmation.
2.4 The goods offered in HBI’s online shop do not constitute binding offers of contract. HBI first checks the availability of the items ordered by the customer before providing the customer with a current price. A contract is only concluded under the conditions specified in section 2.3 for orders placed via the online shop.
2.5 Partial deliveries are permissible to a reasonable extent and will be invoiced separately.
3. Documents
3.1 HBI reserves all property rights and copyrights, if any, to all documents provided by us, in particular catalogues, flyers and photographs. The documents may not be used, duplicated or otherwise made available to third parties for any purpose other than that intended by HBI and, in particular, do not entitle the recipient to reproduce individual parts.
3.2 All documents provided by us must be returned to us immediately upon our request. They must be returned without a separate request if an order is not placed with HBI.
4. Prices
4.1 Orders are accepted on the basis of the prices valid at the time of the order. Prices are exclusive of VAT and exclusive of packaging. Unless otherwise agreed, packaging will be charged separately together with the freight costs.
4.2 In the event of an increase in the prices of materials or raw materials, energy costs, wages and salaries, manufacturing or transport costs, HBI shall be entitled to charge the prices resulting from the effective cost increases on the day of delivery, unless the delivery takes place within four months of the conclusion of the contract in the case of a non-trading transaction. In the event of a price increase of more than 25% due to the above regulation, the customer may withdraw from the contract to the exclusion of further claims. The customer must assert the withdrawal to HBI within two weeks of becoming aware of the price increase, whereby the date of receipt of the declaration of withdrawal by HBI is decisive for meeting the deadline. After the two-week period has expired, withdrawal due to the price increase is no longer possible. However, any withdrawal based on the above provision only applies to those deliveries that would be invoiced at a higher price.
5. Shipping, labelling requirements
5.1 The parties shall agree on the shipping method for each order individually. If the parties have not reached an individual agreement on the shipping method, the goods shall be provided ex works from the seller (EXW of the INCOTERMS 2020 of the International Chamber of Commerce in Paris, ICC).
5.2 If the parties have agreed that HBI will ship the goods, HBI is free to choose the transport company and the shipping method at its own discretion. The customer shall bear the freight costs, which are specified in the offer sent in each individual case.
5.3 The customer’s shipping instructions are only binding for us if they have been brought to our attention and confirmed by us in writing.
5.4 The customer is obliged to comply with all labelling obligations, in particular to affix the necessary warning and control labels. At the request of HBI, the customer shall provide the relevant proof and information.
5.5 HBI automatically takes out transport insurance for ordered goods at the customer’s expense. The customer is entitled to object to the inclusion of the transport insurance. HBI shall inform the customer in good time of the inclusion of the insurance.
6. Payment
6.1 Unless otherwise agreed, payments are to be made immediately upon invoicing, in full without discount. If the customer does not pay within 30 days of receipt of the invoice, he shall be in default, unless the payment is not made due to a circumstance for which he is not responsible.
6.2 If the buyer is in default, HBI is entitled to charge statutory default interest on the purchase price claim from the date of default at a rate of currently 9 percentage points above the base interest rate p.a. This does not preclude the assertion of further claims for damages.
6.3 HBI is entitled, even if the customer’s provision is to the contrary, to initially offset payments against the customer’s older debts and will in this case inform the customer about the type of offsetting that has taken place. If costs and interest have already been incurred, HBI is entitled to initially offset the payment against the costs, then against the interest and finally against the main claim. HBI will take the justified concerns of the customer into account for each billing and/or offsetting in the sense of section 6.4.
6.4 A payment is only considered to have been made when HBI can access the amount. Bills of exchange or cheques are only accepted if contractually agreed and in any case on account of performance. The customer bears the costs of discounting and collection. If payment is made in a currency other than the euro, the claim is only deemed to have been satisfied when the foreign currency payment on the day of receipt of payment, i.e. after it has been credited to HBI’s account, corresponds to the agreed euro amount.
6.5 The buyer is only entitled to set-off, retention or price reduction if the counterclaims have been finally adjudicated or are undisputed. However, the customer/buyer is also entitled to retention due to counterclaims from the same contractual relationship, provided that the counterclaims are not claims for payment.
6.6 If HBI becomes aware of circumstances that cast doubt on the creditworthiness of the buyer, in particular if a cheque is not honoured or the buyer stops payments or if other circumstances become known that cast doubt on the buyer’s creditworthiness, HBI is entitled to demand payment of the entire remaining debt. This also applies if HBI has accepted cheques. In this case, HBI is also entitled to demand advance payments and securities. In the event of partial deliveries, HBI is also entitled to refuse to deliver any remaining goods from the order without being liable for damages.
7. Delivery and acceptance obligations
7.1 The delivery times stated in our offers are non-binding for us. Delivery dates or deadlines, which can be agreed upon as binding, require our express written confirmation.
7.2 The delivery dates refer to the day of the order confirmation by HBI, provided that all mercantile and other requirements for the fulfilment of the order have been clarified with the customer, the documents to be provided by the customer have been received by HBI, any necessary permits and releases have been issued, and the agreed down payments have been credited to a bank account of HBI.
7.3 HBI shall not be held responsible for delays in delivery and performance due to force majeure and events that make delivery difficult or impossible for HBI through no fault of its own – including, in particular, strikes, lockouts, administrative orders, etc., even if they occur at an upstream supplier of HBI or its subcontractors – even in the case of bindingly agreed deadlines and dates. They entitle HBI to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the unfulfilled part, in which case any consideration already provided in this regard must be reimbursed immediately. If the hindrance lasts longer than three months, the buyer is entitled, after setting an appropriate grace period, to withdraw from the contract with regard to the unfulfilled service, whereby any consideration already paid in this regard must also be reimbursed immediately. If the delivery time is extended or if HBI is released from the obligation, the buyer cannot derive any claims for damages from this.
7.4 The buyer/client is obliged to accept the goods. Claims due to defects in the delivered goods are not affected by this. There is no obligation to accept the goods if the defect constitutes a material breach of contract or if there is a risk of property damage or personal injury due to the nature of the goods.
7.5 If the customer delays the shipment of the goods or if the customer does not carry out the timely transport, HBI is entitled, starting on the 14th day after notification of readiness for shipment, to store the goods at its reasonable discretion at the risk of the buyer and to invoice the goods as delivered ex works, as well as to charge the buyer the costs of storage, but at least 0.5% of the value of the goods (invoice amount) for each month started from the date of readiness for dispatch. The aforementioned compensation shall only apply if the buyer does not provide evidence of lesser damage. In addition, HBI reserves the right to claim higher costs upon presentation of appropriate evidence. HBI is also entitled to dispose of the goods in another way after a reasonable period of time and to supply the buyer in another way within a reasonably extended delivery period.
7.6 Clause 11 of these delivery and payment conditions applies to claims for damages due to delayed delivery.
8. Transfer of risk
8.1 The place of fulfilment for all deliveries is Erkelenz, unless otherwise confirmed in writing in the order confirmation from HBI. The risk is transferred when the goods are handed over to the carrier, even if HBI has taken over the transport.
8.2 If the goods are ready for shipment or if shipment is delayed for reasons beyond HBI’s control, the risk shall pass to the buyer as soon as HBI has informed the buyer either orally or in writing that the goods are ready for shipment.
8.3 For cross-border contracts, the clause of the INCOTERMS 2020 of the International Chamber of Commerce in Paris, ICC, that applies depends on the individual contract resulting from the respective offer or the order confirmation from HBI, depending on how the respective contract was concluded in accordance with Section 2.3.
9. Retention of title
9.1 HBI retains title to the delivered goods until full payment of the claim to which HBI is entitled. If the customer is a merchant, HBI retains ownership of all delivery items until all claims arising from the business relationship between HBI and the customer have been settled. The inclusion of individual claims in a current account relationship, the ongoing accounting and the balancing of the account and its recognition do not affect the retention of title. If the buyer acts in breach of the contract, in particular if he is in default of payment, HBI is entitled to take back the goods and the buyer is obliged to surrender them after HBI has withdrawn from the contract. Goods in which HBI has (co-)ownership are hereinafter referred to as reserved goods.
9.2 The customer is obliged to insure the reserved goods appropriately against all usual risks, in particular fire, burglary and water damage, and to treat and store them with care.
9.3 In the event of access by third parties to the reserved goods, the buyer shall indicate that the goods are the property of HBI and shall notify HBI immediately.
9.4 The buyer is entitled to resell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer of property by way of security is not permitted. The buyer hereby assigns to HBI, by way of security, all claims (including all current account balance claims) arising from the resale of the goods or on any other legal basis (insurance, tort) with respect to the reserved goods. HBI revocably authorises the buyer to collect the claims assigned to HBI in its own name for the account of HBI. This collection authorisation can be revoked if the buyer does not properly fulfil his payment obligations.
9.5 Processing and transformation of the reserved goods are always carried out for HBI as the manufacturer. If the (co-)ownership expires due to combination, it is agreed that the (co-)ownership of the contractual partner in the combined item is transferred to HBI in proportion to the value (invoice value). The buyer shall store the (jointly) owned property for HBI free of charge.
9.6 HBI shall release the reserved goods as well as the items or claims taking their place if their value exceeds the amount of the secured claim by more than 50 %. The selection of the items to be released thereafter is at HBI’s discretion.
10. Warranty
10.1 With regard to the buyer’s inspection and notification obligations, § 377 of the German Commercial Code (HGB) shall apply to our deliveries. The buyer shall inspect the delivered goods immediately for defects, condition and damage. Notification of defects must be made immediately and in writing. Obvious defects must be reported within two weeks of receipt of the delivery. Non-obvious defects must be reported within two weeks of discovery. In the event of a delayed notification of defects, any liability for defects is precluded. Each notification of defects must state which defects have been detected and whether these were noticed immediately or only after further processing of the goods. HBI is entitled to have the reported defects checked by its own employees. At the request of HBI, the rejected goods are to be returned in the delivery condition to us for the purpose of inspection.
10.2 The warranty shall not apply in the event of improper use, faulty installation, incorrect operation or failure to observe relevant regulations. Furthermore, the warranty shall become void if the buyer modifies the delivered item without the prior written consent of HBI.
10.3 The warranty period for claims for defects is one year. It begins with the delivery date; in the case of work contract services, it begins with the approval of the work.
10.4 In the event of a justified and timely notification of defects, we shall be obliged to provide subsequent performance in the form of rectification of the delivered goods free of charge or, at our discretion, if the law on contracts for work and services applies, to provide a replacement delivery. If subsequent performance is not possible or unreasonable, we shall also be entitled, at our discretion, to credit the reduced value and to take back the goods complained about and refund the purchase price.
10.5 If a complaint about defects is unjustified, we are entitled to demand compensation from the customer for the expenses incurred.
11. Limitations of liability
11.1 The liability of HBI for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, is limited in accordance with this § 11, insofar as this depends on culpability in each case.
11.2 HBI is not liable in the event of ordinary negligence on the part of its organs, legal representatives, employees or other agents, provided that it is not a matter of a breach of essential contractual obligations. Essential contractual obligations are the obligation to deliver and install the delivery item on time, the freedom from defects that more than insignificantly impair its functionality or usability, as well as advisory, protective and custodial obligations that are intended to enable the buyer to use the delivery item in accordance with the contract or that are intended to protect the life and limb of the buyer’s personnel or to protect the buyer’s property from significant damage.
11.3 Insofar as HBI is liable for damages in accordance with § 11.2, this liability is limited to damages that HBI foresaw as a possible consequence of a breach of contract when the contract was concluded or that it should have foreseen if it had exercised due care. Indirect and subsequent damages resulting from defects in the delivery item are only eligible for compensation if such damages can typically be expected when the delivery item is used as intended.
11.4 In the event of liability for ordinary negligence, HBI’s liability for property damage and any resulting further financial losses is limited to an amount of EUR 1,000,000.00 per claim (corresponding to the current sum covered by its product liability insurance or general liability insurance), even if it is a matter of a breach of essential contractual obligations.
11.5 The above exclusions and limitations of liability apply to the same extent to the benefit of the governing body, legal representatives, employees and other agents of HBI.
11.6 Insofar as HBI provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.
11.7 The limitations of this Section 11 do not apply to the liability of HBI due to intentional behaviour, guaranteed characteristics, injury to life, limb or health or according to the German Product Liability Act (ProdHaftG).
11.8 If HBI provides proof of a congruent hedging transaction at the time of the conclusion of the contract, HBI shall not be liable if, due to obstacles for which the HBI is not responsible, the sub-supplier’s delivery is not made on time and, as a result, the goods cannot be delivered to the customer in accordance with the contract.
12. Refusal to perform
If a contract is not fulfilled due to a breach of contract by the customer, the customer shall pay a contractual penalty in the amount of the costs already incurred by HBI, but at least 25% of the net value of the goods ordered. The aforementioned flat-rate claim for damages of 25% shall only apply if the customer does not provide evidence that the actual damage is lower. If HBI withdraws from a concluded contract for a justified reason, the customer shall pay the costs already incurred as a result.
13. Liability for infringement of industrial property rights
13.1 Unless HBI provides separate notification, the delivery item is, to the best of our knowledge, free of third-party industrial property rights in the Federal Republic of Germany.
Should the delivery item or a part of it nevertheless infringe a property right that has already been granted and published in the Federal Republic of Germany at the time of the conclusion of the contract or, if the delivery item expressly includes a specific procedural right, a corresponding procedural right, and legal proceedings have therefore been initiated against the customer, HBI shall, at its own expense and at its own discretion, either procure the right for the customer to continue to use the delivery item or modify the delivery item or the relevant part or the process within a reasonable period of time so that there is no longer any infringement of third-party property rights, or withdraw from the contract.
13.2 If the delivery items are manufactured on the basis of drawings, drafts, models or other equivalent descriptions or information provided by the buyer, HBI shall be indemnified and held harmless against all claims by third parties arising from an alleged or actual infringement.
13.3 The customer is obliged to inform HBI immediately and in writing of any claims asserted or claimed by a third party. The customer is not entitled to acknowledge an infringement without the consent of HBI; all defence measures and settlement negotiations are reserved for HBI. In the event of discontinuation of use of the delivery item by the customer, the customer shall point out to the third party that the discontinuation of use is not associated with any acknowledgement of an infringement of industrial property rights.
13.4. In all other respects, the provisions of §§ 10 and 11 of our General Terms and Conditions of Delivery and Payment shall apply.
14. Applicable law, place of fulfilment, place of jurisdiction and severability
14.1 German law applies to all legal relationships between HBI and the buyer.
14.2 The application of the UN Sales Convention (CISG) is excluded.
14.3 The place of fulfilment for all mutual obligations is the registered office of HBI in Erkelenz.
14.4 Sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Aachen, provided that the buyer is a merchant, a legal entity under public law or a special fund under public law. However, we are also entitled to bring an action at the general place of jurisdiction of the buyer.
14.5 Should any of the provisions of these General Terms and Conditions of Sale and Delivery or any of the provisions of any other agreements be or become invalid, this shall not affect the validity of all the other provisions or agreements.
15. Confidentiality
Both parties are obliged to treat as confidential all business and trade secrets of the other party that come to their knowledge in the course of the execution of the contract and not to disclose them to third parties. The parties shall impose this obligation in the same way on third parties that they engage in the course of executing orders.
16. Translations
If HBI decides to make these General Terms and Conditions of Delivery and Payment available in other languages, this is purely a courtesy to the customer. HBI does not assume any liability for deviations in the content of these terms and conditions in the event of a translation into a language other than German. In the event of collisions and/or contradictions, these terms and conditions in the German language version always take precedence.