Terms of business

HORSCH LLC. | Terms of business

Terms of business

1. General

1.1. Our supplies, services and offers are based exclusively on these terms. Any deviations from these terms are to be in writing. We will not recognize any terms of the customer which conflict with, or deviate from our terms unless these have been explicitly accepted by us in writing. Our terms will also apply when we deliver goods to the customer unconditionally even though we are aware of terms of the customer which conflict with, or deviate from our own terms of business. The version of our terms applicable at the time will also apply to all future business relations.

1.2. The customer will not be entitled to assign claims against us.

1.3. h Agreements, contractually specified uses, acceptance of procurement risks, warranties, or any other assurances prior to, or upon conclusion of the contract, shall be effective only when same are in writing.

1.4. Our offers shall be non-binding until the order is confirmed in writing. Goods shall be subject to prior sale.

2. Offer, scope of supply or service, delivery period, transfer of risk and return deliveries

2.1. Our written order confirmation shall be definitive as far as the scope of supply or service is concerned. Same shall apply to any offer made by us provided the offer is accepted and no confirmation has been received.

2.2. Documents such as cost estimates, drawings, diagrams, dimensions, weights, or any other performance data shall be deemed to be binding only when same are explicitly agreed upon in writing. We reserve the ownership rights and copyright in respect of cost estimates, drawings, plans and other documents (e.g., also in the case of tender invitations). The aforementioned documents are not to be made accessible to third parties without obtaining our prior written consent. Said documents must be returned to us immediately upon request should we not receive the order.

2.3. We reserve the right to make alterations for technical reasons in terms of manufacturing, as well as to deviate from dimensions, weights, colours, samples etc., provided same are deemed reasonable as far as the customer is concerned. This applies, in particular,  to alterations and/or deviations which contribute towards maintaining or increasing the value of the goods. The same shall also apply analogously to subsequent deliveries.

2.4. Delivery periods and dates shall be deemed to be agreed as approximate unless we explicitly provide legally-binding written confirmation thereof. The delivery period shall begin upon dispatch of the order confirmation, however, not before the customer has provided the required details, documents and permits and the agreed down payment has been received. Should these prerequisites not be fulfilled, the delivery period shall be extended appropriately. The supplier’s adherence to the delivery period shall be dependent upon the customer fulfilling his/her contractual obligations.

The delivery period shall also deemed to have been adhered to when the article of sale has been dispatched, at the latest, on the 14th calendar day after the delivery date or readiness for dispatch has been notified.

2.5. The delivery period shall be appropriately extended where action is necessary within the framework of labour disputes, as well as in the case of unforeseen obstacles over which we have no control (e.g., shortages of materials, energy and manpower, as well as insufficient transportation capacity, production disturbances, traffic disruptions, official orders, etc.) insofar as it is established that such obstacles have  a decisive effect upon the production or delivery of the article of sale. Same shall also apply to subcontractors and subsuppliers in the same situation. We shall also not accept responsibility for the above-described circumstances if they occur during an already prevailing delay in performance, provided such delay was not intentional or due to gross negligence on our part. In important cases, we shall inform the customer as soon as possible of the occurrence and cessation of any such obstacles.

2.6. In case of delayed deliveries, the customer shall be able to withdraw from the contract only upon the abortive expiry of a reasonable period of grace specified by the customer in writing (unless the setting of a time limit is not required by law) and when notification that the goods are ready for dispatch has not been given by that time. Same shall also apply in the case of a partial delay or partial impossibility. The consequences of the delayed delivery or impossibility of performance shall be determined according to clause 6.

2.7. Should the goods or object of performance not be collected by the customer by the agreed date, should dispatch be postponed at the request of the customer, or should the customer fail to collect the goods or object of performance after having received notification of readiness including a reminder, the customer shall be charged the costs incurred for storage and financing, beginning from expiry of the agreed date, notification of readiness, or receipt of the reminder, at a rate of at least 0.5% (up to a maximum total of 5%) of the relevant invoice amount for each month or part thereof that collection is delayed, unless the customer can provide evidence of lower costs.

We shall, however, be entitled, after the setting and abortive expiry of a reasonable time limit, to dispose of the article of sale in another way and to supply the customer with another article of sale within a reasonable extended period of time.

The aforementioned conditions shall apply analogously to any agreed additional or subsequent orders which lead to a delay in delivery of the goods. 

2.8. Should the customer fail to take delivery of the article of sale or object of performance after two reasonable time limits have been set, we shall be entitled to charge a cancellation fee of 15 % of the invoice amount.

2.9. Risk shall be transferred to the customer upon collection/dispatch of the article of sale - also by means of own vehicles - including in the case of free delivery.

2.10. Delivered articles are to be taken delivery of by the customer, even if such articles have insignificant defects, without prejudice to the customer’s rights as specified in clause 5.

2.11. Should dispatch be delayed due to circumstances for which the customer is responsible, risk shall be transferred to the customer from the date of notification of readiness for dispatch, however, we shall be obliged to arrange insurance at the request and expense of the customer.

3. Prices and terms of payment

3.1. In the absence of a special agreement, the prices shall apply ex works/store, excluding loading and packaging. The legally applicable VAT rate must be added to the prices.

3.2. In the absence of a special agreement,  our invoices within Germany shall be payable within 30 days from the date of the invoice. Upon payment within 10 days of the invoice date, we shall grant a cash discount of 2%. In special cases, we reserve the right to collect invoice amounts per cash on delivery, or to insist on payment prior to delivery.

In the case of deliveries outside Germany, payment prior to delivery shall apply as a matter of principle insofar as no deviating terms of payment have been agreed in writing. 

As far as all payments are concerned, the date of payment shall be deemed to be the date on which we can dispose of the money or on which the bank confirms to us that payment has been received.

3.3. Should, during the period of time between conclusion of the contract and the delivery date, a factor which is decisive in terms of pricing, such as labour and/or energy costs and/or the costs of raw materials and/or process materials, increase, we shall be entitled to adjust the prices by the amount which the procurement or manufacturing costs of the article of sale have increased. Should the price increase exceed 10% of the originally agreed price, the customer shall be entitled to withdraw from the contract. 

3.4. Any agreed discounts, rebates or other reductions shall be dependent upon proper fulfilment of all provisional or partially non-fulfilled agreements between the customer and our company at the time the contract is concluded.

3.5. Cheques and bills of exchange shall only be accepted upon prior agreement and on account of payment. Charges shall always be borne by the customer and payable immediately.

3.6. Our representatives and other employees are not entitled to accept payments without written authority to collect or to accept any obligations on our behalf.

3.7. The withholding of payments or setting off against counter-claims of the customer shall not be permitted except as provided for in clause 3.8., unless it has been established that the counter-claims are undisputed or are res judicata.

3.8. In the case of justified and accepted notices of defects, the customer shall be entitled to withhold payments in reasonable proportion to the defects.  Should a notice of defect not be justified and not be accepted by us, we shall be entitled to demand compensation from the customer for any expenditure incurred.

3.9. In case of delay, we shall be entitled to charge the legal rate of interest. The right to submit a further claim for damages is reserved in case of delay.

In case of delay, all other claims vis-à-vis the customer arising from deliveries or services shall be payable immediately irrespective of any agreed/deferred payment dates.

4. Reservation of ownership

4.1. We shall reserve ownership of the article of sale (conditional commodity) until payment in full has been effected.

We shall also reserve ownership until all claims to which we are entitled vis-à-vis the customer on whatever legal grounds at the time the contract is concluded and in the future which ensue from the business relationship, including any refinancing or acceptor’s bills relating to the goods delivered, are satisfied.

Payments made against a customer’s promissory note issued by us shall only be deemed to be payment when the bill of exchange has been redeemed by the drawee and we are thus released from liability for the bill of exchange.

The inclusion of individual claims in a current account, as well as drawing up a balance and its acceptance, shall not affect our right of ownership.

4.2. The treatment and processing of the conditional commodity shall be effected for us as the manufacturer in terms of Section 950 of the German Civil Code without any liability on our part. The treated and processed article shall be deemed to be a conditional commodity in terms of clause 4.1. Should the customer process, combine and mix the conditional commodity with other articles which do not belong to us, we shall be entitled to co-ownership of the new article in proportion to the invoice value of the conditional commodity in relation to the invoice value of the other goods used.

Should our ownership extinguish as a result of combination or mixing, the customer shall even now transfer to us his/her right of ownership to the new stock and the object to the extent of the invoice value of the conditional commodity and shall keep same in safe custody for us free of charge.

Our co-ownership rights shall be deemed to be a conditional commodity in terms of clause 4.1.

4.3. The customer may only sell the conditional commodity in the normal course of business subject to customary commercial terms and conditions provided he/she is not in delay and provided the accounts receivable from the resale are transferred to us in accordance with clauses 4.4 to 4.6. The customer shall not be entitled to dispose of the conditional commodity in any other way. 

4.4. Claims deriving from the resale of the conditional commodity will even now be assigned to us. Same shall serve as a means of securing our claims to the same extent as the conditional commodity in accordance with clause 4.1. Should the conditional commodity be sold by the customer together with other goods which have not been purchased from us, the claims deriving from the resale shall be assigned to us in proportion of the invoice value of the conditional commodity to the invoice values of the other goods used. Should goods of which we have co-owner shares in accordance with clause 4.2 be sold, a portion of the claims deriving therefrom corresponding to our co-ownership share shall be assigned to us. Should the conditional commodity be used by the customer to fulfil a contract for work and services, the same proportion of the claims deriving from the contact for work and services shall be assigned to us in advance. We shall accept the aforementioned assignment of claims.

4.5. The customer shall be entitled to collect claims deriving from the resale. This authorization to collect shall extinguish should it be revoked by us. We shall  make use of our power of revocation only should we become aware that the customer’s financial circumstances have deteriorated so substantially as to put our claim for payment at risk, particularly in case of delay, non-payment of a bill or cheque, or an application to open insolvency proceedings. 

The customer shall be obliged, at our request, to immediately inform his/her customers of the assignment to us and to provide us with the documents necessary for collection.

4.6. Should the terms of the contract between the third-party debtor and the customer effectively limit the right of assignment or should the third-party make assignment dependent upon his/her agreement, we are to be informed of this in writing immediately. In such case, we shall herewith be irrevocably authorized to collect the claim due to us on behalf and for the account of the customer. The customer shall, at the same time, irrevocably order the third-party debtor to remit payment to us.

The customer shall immediately inform us of any attachment or other impairment by third parties. The customer shall bear all costs incurred in cancelling the attachment or in returning the conditional commodity unless same are reimbursed by third parties.

4.7. Should the realizable value of the existing securities exceed our claims by a total of more than 20 %, we shall be obliged to release securities at our option at the request of the customer or a third party prejudiced by our excess security.

4.8. In case of a breach of duty on the part of the customer, especially in case of delayed payment, we shall be entitled to withdraw from the contract and to demand the return of the conditional commodity - without prejudice to other claims for compensation - after the abortive expiry of a reasonable time limit for payment which the customer has been set; the statutory provisions regarding the dispensability of setting a time limit shall remain unaffected. The customer shall be obliged to surrender possession and to assign any claims for return of property. We shall be entitled to enter the customer’s premises for the purpose of retrieving the conditional commodity. The same shall apply should other circumstances arise that would suggest a substantial deterioration in the customer’s financial circumstances and put our claims for payment at risk. 

A credit note will be issued for the repossessed goods to the value of the original invoice amount less a lump sum payment of 10 % for each month or part thereof which elapses between delivery and repossession. We shall be entitled to provide grounds for higher compensation and the customer for lower compensation.

5. Material defects and defects in title

5.1. Documents and data relating to items and services supplied, as well as to the intended purpose (e.g., drawings, diagrams, dimensions, weights, practical values and  other performance data), whether or not these have been specifically agreed upon in writing, are to be regarded solely as descriptions and/or identification and not as warranties, guaranteed characteristics, contractually prescribed uses, or similar, and are to be regarded as approximations. The right to make variations which are customary in this line of business is reserved insofar as same are deemed reasonable from the customer’s point of view, i.e., in particular when, as a result thereof,  the value of the goods is maintained or improved.

Our drivers and third-party drivers are not authorized to take delivery of notices of defects.

Notices of defects shall not, under any circumstances, be accepted after the goods have been treated or processed insofar as the defect was detectable during the inspection in the state as delivered.

5.2. The provisions of Section 377 of the German Commercial Code shall apply vis-à-vis merchants. In particular, the customer shall be obliged to inspect the goods carefully immediately upon their receipt, while same are in the delivered state, or upon collection, and to report any defects immediately in writing. The delivery of higher/lower quantities or heavier/lighter weights within the customary limits shall not constitute grounds for complaints and/or price reductions.

5.3. Should newly manufactured items or new work performance be concerned, claims for compensation for material defects shall become statute-barred upon the expiry of 12 months from the date of delivery of the article of sale to the customer unless the customer has resold the unused article of sale and we have received from the customer the completed and signed confirmation of receipt from the purchaser immediately upon the article of sale being handed over to the purchaser; in such case, claims for compensation for material defects shall become statute-barred upon the expiry of 12 months from the date the article of sale is handed over.

Should used goods be supplied, all claims for material defects will be excluded, except those claims based upon statutory regulations and any other agreements. The shortened period of limitation and exclusion from liability shall not apply in cases of intentional or negligent injury to life, body or health, in the case of an intentional or grossly negligent breach of duty on our part, and in the case of fraudulent non-disclosure of a defect. The statutory regulations relating to the expiry, suspension or recommencement of periods of limitation shall remain unaffected.

5.4. In case of material defects, we shall first be given the opportunity to supplement our performance within a reasonable period of time, whereby we shall have the option of either remedying the defect or of delivering a non-defective item. In the latter case, the customer shall be obliged to return the defective article  to us upon our request, in accordance with the statutory regulations. Should the supplementary performance be unsuccessful, or should we finally and absolutely refuse supplementary performance, or should we be able to refuse supplementary performance pursuant to Section 439, paragraph 3, of the German Civil Code, or can the customer not be reasonably expected to accept the supplementary performance, or should Section 323, paragraph 2, of the German Civil Code be applicable in this case, the customer shall be entitled to withdraw from the contract or to reduce the valuable consideration without prejudicing any claims for compensation in accordance with clause 6.

5.5. There shall be no warranty claims in case of insignificant deviations from the agreed quality, minor impairment of usefulness, natural wear and tear or damage arising after the transfer of risk as a result of improper or negligent handling and storage, excessive strain, unsuitable operating equipment, or arising from particular outside influences which are not provided for in the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications or repair work carried out by the customer or third parties and the consequences thereof shall likewise be excluded.

5.6. The customer’s right of recourse against us pursuant to Section 478 of the German Civil Code (customer’s recourse) shall be limited to cases where the customer has not concluded any agreements with his/her purchaser which exceed the scope of the statutory provisions governing claims based on defects. The extent of the customer’s right of recourse against us pursuant to Section 478, paragraph 2, of the German Civil Code shall be as specified in clause 5.7 below.

5.7. The customer shall not be entitled to claim compensation for expenses incurred for the purpose of supplementary performance, in particular costs for transportation, travel, labour and material, should the expenses increase because the article of sale has subsequently been transferred to a location other than the place of business of the customer, unless said transfer is in accordance with the intended use of the item.

5.8. For the rest, claims for damages shall be governed by clause 6. The customer shall not be entitled to make any further claims, or claims other than those specified in said clause,  against us or our subcontractors due to a material defect.

5.9. We shall not accept any liability for claims for material defects in cases where the article of sale is subject to regulations outside the territory of the Federal Republic of Germany which exceed the German regulations.

5.10. The provisions in clauses 5.1 to 5.10 shall also apply in the case of defects in title.

6. Claims of the customer based upon delayed delivery, impossibility of delivery and other breaches of duty

6.1. Unless otherwise provided for in clauses 6.2 to 6.6, all claims of the customer for damages due to delayed delivery, impossibility of delivery or based on any other legal grounds, in particular due to breach of duty arising from the obligation relationship and from unlawful acts, shall be excluded. Same shall apply both to claims of the customer for damages and to claims for reimbursement of expenses.

6.2. The aforesaid attributable to a negligent breach of duty on our part or to a deliberate or negligent breach of duty on the part of persons legally representing our company or one of our subcontractors,

c) claims pursuant to product liability law,

d) claims pursuant to any other mandatory statutory regulations, or

e) due to the breach of essential contractual obligations by us.

Claims for damages due to the breach of essential contractual obligations shall, however, be limited to contractually typical, foreseeable damage, provided no intent or gross negligence is involved or liability exists for negligent or wilful injury to life, body or health.

Essential contractual obligations are obligations the fulfilment of which is essential for proper performance of the contract and on the observance of which the orderer may normally rely.

The aforementioned rules are not coupled with any changes to the legal burden of proof to the disadvantage of the customer. 

Provided limited liability is permitted, liability for contractually typical, foreseeable damage shall be limited to seven (7) times the net price of the individual subject of the contract upon the delivery/non-delivery of which the customer’s claims are based.

6.3. Any claims for damages or for reimbursement of expenses resulting from defects, to which the customer is entitled in accordance with clauses 6.1 and 6.2, shall become statute-barred upon expiry of the periods of limitation applicable to claims for material defects in accordance with clause 5.3 above. The statutory periods of limitation shall apply where claims are made for damages under product liability law.

6.4. The aforesaid liability exemptions and limitations shall not apply in cases where a stricter liability has been contractually agreed or can be implied from the other content of the obligation relationship, also in particular with regard to the provision of a warranty or assumption of a procurement risk.

6.5. The customer shall not be entitled to claim for damages in lieu of performance should our breach of obligations be negligible.

6.6. Notwithstanding the aforesaid limitations, any legal right of the customer to withdraw from the contract shall remain unaffected hereby. However, in cases of a breach of obligation not related to a defect in the goods, it is required that we are responsible for said breach.

7. Applicable law, venue and miscellaneous

7.1. This contract shall be governed by German law with the exception of the Vienna UN Agreement of  April 11, 1980.The language for negotiations shall be German.

7.2. The place of performance for the customer’s obligations and for our obligations shall be the principal place of business of our company.

7.3. The venue for all current and future claims arising from the business relationship, including claims based on bills of exchange and cheques, shall be Straubing should the customer be a merchant, legal entity or a special fund under public law. Said venue shall also apply when the customer has no general venue in Germany, moves his/her home or usual place of residence abroad after conclusion of the contract or if his/her address or usual place of residence is not known at the time when legal proceedings are instituted.

7.4. Should any provision of these General Terms be or become invalid, the other provisions shall not be affected thereby. The invalid provision will be replaced by a valid provision, the content and purpose of which is as similar as possible to that of the invalid provision.