General Terms and Conditions of Sale of Heller Klavierbau, Ringstr. 4, 74927 Eschelbronn, Germany
1 Scope
1.1 These Terms and Conditions of Sale apply exclusively to businesses (Unternehmer), legal entities under public law and special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognise terms and conditions of the purchaser that conflict with or deviate from our Terms and Conditions of Sale if we have expressly agreed to their validity in writing.
1.2 These Terms and Conditions of Sale shall also apply to all future transactions with the purchaser, insofar as they are legal transactions of a related nature.
2 Prices and payment
2.1 Unless otherwise agreed in writing, our prices are ex works and exclude packaging, freight, postage, value added tax and insurance.
2.2 Payment of the purchase price shall be made exclusively to the bank accounts stated by us.
2.3 Unless otherwise agreed, the purchase price is payable within 30 days of delivery. Default interest shall be charged at a rate of 9 percentage points p.a. above the applicable base interest rate. We reserve the right to claim further damages caused by default.
2.4 Unless a fixed price has been agreed, we reserve the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 3 months or later after conclusion of the contract.
2.5 If we have indisputably delivered goods that are partially defective, our contractual partner shall nevertheless be obliged to pay for the non-defective portion, unless the partial delivery is of no interest to him.
3 Set-off and rights of retention
The purchaser shall only be entitled to set off if his counterclaims have been finally determined by a court (res judicata) or are undisputed. The purchaser shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
4 Delivery time
4.1 The commencement of the delivery period stated by us requires the timely and proper fulfilment of the purchaser’s obligations. We reserve the defence of non-performance of the contract.
4.2 If the purchaser is in default of acceptance or culpably breaches other duties to cooperate, we shall be entitled to claim compensation for the resulting damage, including any additional expenses. We reserve the right to make further claims. If these conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the purchaser at the time at which the purchaser is in default of acceptance or in default of payment.
4.3 In the event of a delay in delivery not caused intentionally or through gross negligence on our part, we shall be liable for lump-sum compensation for delay of 2% of the delivery value for each completed week of delay, but not exceeding a maximum of 10% of the delivery value.
4.4 The purchaser shall only be entitled to withdraw from the contract due to non-compliance with a delivery period if we are responsible for the non-compliance with the delivery date and the purchaser has set us a reasonable grace period in writing after expiry of the delivery period. Reminders and the setting of grace periods must be made in writing.
4.5 We shall be entitled to make partial deliveries insofar as this is reasonable for the purchaser. The purchaser shall be obliged to accept partial deliveries without undue delay.
4.6 Any further statutory claims and rights of the purchaser due to a delay in delivery shall remain unaffected.
5 Transfer of risk upon shipment
If the goods are shipped to the purchaser at his request, the risk of accidental loss or accidental deterioration of the goods shall pass to the purchaser upon dispatch, at the latest when the goods leave the factory. This applies regardless of whether the goods are shipped from the place of performance and regardless of who bears the freight costs.
6 Retention of title
6.1 We retain title to the delivered goods until all claims arising from the supply contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased goods if the purchaser acts in breach of contract.
6.2 As long as title has not passed to him, the purchaser is obliged to treat the purchased goods with care. As long as title has not passed, the purchaser must notify us in writing without undue delay if the delivered goods are seized or subject to other interventions by third parties. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.
6.3 The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. The purchaser hereby assigns to us all claims against his customers arising from the resale of the goods subject to retention of title, in the amount of the final invoice amount agreed with us (including value added tax). This assignment applies regardless of whether the purchased goods are resold without or after processing. The purchaser remains authorised to collect the claims even after the assignment. Our right to collect the claims ourselves remains unaffected. However, we will not collect the claims as long as the purchaser meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
6.4 Any processing or transformation of the purchased goods by the purchaser shall always be carried out on our behalf and in our name. In this case, the purchaser’s expectant right (Anwartschaftsrecht) to the purchased goods shall continue in the transformed item. If the purchased goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the objective value of our purchased goods to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the purchaser’s item is to be regarded as the main item, it is deemed agreed that the purchaser transfers proportionate co-ownership to us and holds the resulting sole ownership or co-ownership in safe custody for us. To secure our claims against the purchaser, the purchaser also assigns to us any claims against a third party that accrue to him through the combination of the goods subject to retention of title with real property; we hereby accept this assignment.
6.5 We undertake to release the securities to which we are entitled at the purchaser’s request insofar as their value exceeds the claims to be secured by more than 20%.
7 Warranty, notice of defects and recourse / supplier recourse
7.1 The purchaser’s warranty rights presuppose that he has duly complied with his obligations to inspect the goods and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
7.2 Claims for defects shall become time-barred 12 months after delivery of the goods supplied by us to our purchaser. Our consent must be obtained before any goods are returned.
7.3 If, despite all care taken, the delivered goods have a defect that already existed at the time of the transfer of risk, we shall, subject to timely notice of defects, at our discretion either repair the goods or deliver replacement goods. We must always be given the opportunity to effect subsequent performance within a reasonable period. Recourse claims shall remain unaffected by the above provision without restriction.
7.4 If subsequent performance fails, the purchaser may, without prejudice to any claims for damages, withdraw from the contract or reduce the purchase price.
7.5 No claims for defects shall exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear, wear or discolouration, or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective installation, unsuitable building ground or special external influences not assumed under the contract. If the purchaser or third parties carry out improper repair work or modifications, no claims for defects shall exist for these or for the resulting consequences either.
7.6 Claims of the purchaser for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the purchaser’s place of business, unless such relocation corresponds to their intended use.
7.7 Recourse claims of the purchaser against us shall exist only insofar as the purchaser has not entered into any agreements with his customers that go beyond the mandatory statutory claims for defects. Section 7.6 shall apply accordingly to the scope of the purchaser’s recourse claims against us.
8 Miscellaneous
8.1 This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.2 The place of performance and the exclusive place of jurisdiction for all disputes arising from this contract shall be our registered place of business. However, we are also entitled to sue the contractual partner at his principal place of business.
8.3 All agreements made between the parties for the purpose of performing this contract are set out in writing in this contract.
8.4 Should individual provisions of this contract be or become invalid or contain a gap, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision, or to fill the gap accordingly.
8.5 These Terms and Conditions of Sale are drawn up in German and English. The English version is provided for convenience only. In case of doubt, or in the event of any discrepancy between the German and the English version, the German version shall prevail.
