General Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery

HWR Spanntechnik GmbH

Effective: January 2025

 

• 1 Scope

 

1. These General Terms and Conditions of Sale and Delivery (“GTCSD”) apply to all our business relationships with our customers (“Purchaser”). The GTCSD apply only if the Purchaser is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310(1) BGB.

 

2. Our GTS apply exclusively. We do not recognize any terms and conditions of the Purchaser that conflict with or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing. These terms and conditions also apply if we carry out the delivery without reservation while being aware of conflicting or deviating terms and conditions of the Purchaser.

 

3. These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (“Goods”). It is irrelevant whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 of the German Civil Code (BGB)). Unless otherwise agreed, the AVLB shall apply as a framework agreement—in the version valid at the time of the purchaser’s order or in the version most recently communicated to the purchaser in writing—to future contracts of the same nature as well, without our having to refer to them again on a case-by-case basis.

 

4. In addition to these terms and conditions, our product information, technical data sheets, and other product-specific publications apply in their currently valid versions.

 

5. Individual agreements made with the purchaser on a case-by-case basis (including ancillary agreements, supplements, and amendments) and information contained in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

 

6. Legally relevant declarations and notifications by the purchaser regarding the contract (e.g., notices of defects, setting of deadlines, withdrawal, or reduction in price) must be submitted in writing, i.e., in written , and text form (e.g., letter, email). Any further statutory formal requirements as well as additional evidence (if necessary, in case of doubt regarding the declarant’s legitimacy) remain unaffected.

 

7. Where reference is made to the applicability of statutory provisions, it should be noted that such references serve merely to clarify. The statutory provisions apply—even if no such clarification has been provided—to the extent that they are not modified or excluded by these General Terms and Conditions of Sale.

 

• 2 Offer and Conclusion of Contract

 

1. Our offers are subject to change without notice unless they are expressly designated as binding. This also applies if we have provided the purchaser with catalogs, technical documentation (e.g., drawings, plans, calculations, cost estimates, references to DIN standards), and other product descriptions or documents (including in electronic form). Information regarding weights, dimensions, performance, and technical data in our documentation is approximate only, unless expressly designated as binding. We reserve the right to make design and form changes to the subject matter of the contract, provided that such changes do not constitute an unreasonable alteration for the purchaser.

 

2. Samples are supplied only for a fee.

 

3. We reserve ownership rights and copyrights to all documentation provided to the customer in connection with the placement of the order. This documentation may not be made available to third parties unless we grant the customer our express written consent to do so.

 

4. The costs for preparing drawings for special designs shall be borne by the customer if the offer does not result in an order for reasons beyond our control.

 

5. We reserve the right to make design and form changes to the subject matter of the contract, provided that this does not result in unreasonable changes for the customer.

 

6. When the customer places an order for the goods, this constitutes a non-binding offer to enter into a contract pursuant to § 145 of the German Civil Code (BGB). Our acceptance of the offer may be declared either in writing (e.g., by means of an order confirmation) or by delivering the goods to the customer.

 

7. For export transactions, delivery shall be made in accordance with the terms agreed upon in the order confirmation; in addition, the International Chamber of Commerce’s international rules for the interpretation of standard commercial contract terms (Incoterms 2020) shall apply.

 

• 3 Prices and Terms of Payment

 

1. Unless otherwise agreed in writing, prices are “ex works” plus applicable value-added tax, unless the contract provides otherwise.

 

2. Unless a fixed-price agreement has been made, we are entitled to adjust prices accordingly in the event of changes in cost factors (in particular material prices, wages, and energy costs) between the conclusion of the contract and the delivery of the goods. The price increase will be calculated based on the actual cost increases and communicated to the buyer upon presentation of the relevant supporting documentation. Price reductions will be passed on in the same manner.

 

3. Payment of the purchase price must be made exclusively to the account specified in the offer. A discount may only be applied if specifically agreed upon in writing.

 

4. Unless otherwise agreed, the purchase price is due and payable within fourteen days of the invoice date. However, we are entitled at any time—even within the context of an ongoing business relationship—to demand payment in advance or a reasonable down payment. We will notify the customer of any such reservation, as well as the amount and due date of the down payment, no later than upon confirmation of the order.

 

5. The purchaser shall be in default upon the expiration of the above payment term. During the period of default, interest shall accrue on the purchase price at the applicable statutory default interest rate pursuant to Section 288 , Paragraph 2 of the German Civil Code (BGB), which is nine percentage points above the respective base rate. We reserve the right to claim further damages resulting from default. With respect to merchants, our claim to commercial due-date interest pursuant to § 353 of the German Commercial Code (HGB) remains unaffected.

 

6. If, after the conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is at risk due to the customer’s inability to pay (e.g., due to a petition for the opening of insolvency proceedings), we are entitled, in accordance with statutory provisions, to withhold performance and, if necessary after setting a deadline, to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts under which the manufacture of non-fungible goods (custom-made items) is owed, we may declare withdrawal immediately. The statutory provisions regarding the dispensability of setting a deadline remain unaffected in this respect.

 

7. For export transactions, payments must be made in accordance with the agreed-upon terms of payment.

 

8. All costs associated with payment transactions, in particular bank fees for international transfers, shall be borne by the customer.

 

• 4 Rights of Retention

 

The purchaser is entitled to rights of set-off or retention only if its claim has been legally established or is undisputed, and its counterclaim is based on the same contractual relationship. In the event that defects occur in connection with the delivery, the purchaser’s counterclaims remain unaffected.

 

• 5 Delivery Period and Delay in Delivery

 

1. All delivery times and dates specified by us are non-binding and are provided for informational purposes only. We undertake to make every reasonable effort to ensure timely delivery. Delays or non-performance for which we are not responsible (e.g., due to force majeure or unforeseeable obstacles) do not entitle the purchaser to damages, rescission, or other claims. In the event of a delay or non- for which we are responsible, the purchaser’s statutory claims remain unaffected.

 

2. Compliance with delivery dates is contingent upon the timely and proper fulfillment of all the purchaser’s obligations, in particular the timely provision of necessary documents, materials, permits, approvals, and down payments.

 

3. The delivery period begins upon dispatch of the order confirmation, but not before receipt of the services to be provided by the customer. Changes to the scope of delivery or the terms of delivery made by the customer will result in a recalculation of the delivery period starting from the confirmation of the change.

 

4. Force majeure, war, civil unrest, strikes, lockouts, government measures, shortages of raw materials, transportation problems, or theft—including at upstream suppliers—shall extend the delivery period appropriately. The purchaser will be informed immediately of the occurrence of such an event and its anticipated impact.

 

5. Deliveries prior to the expiration of the delivery period and in reasonable partial deliveries are permitted.

 

• 6 Delivery, Transfer of Risk, Default in Acceptance

 

1. Shipment of the goods shall take place exclusively at the purchaser’s request. In the context of a sale with shipment, the purchaser shall bear all transportation costs ex works as well as the costs of any transportation insurance requested by the purchaser. The Incoterms 2020 in the respectively agreed version (e.g., EXW, FCA) shall apply to insurance, transfer of risk, and cost sharing. The purchaser shall bear all applicable customs duties, fees, taxes, and other public charges.

 

2. The risk of accidental loss or accidental deterioration of the goods, as well as the risk of delay, passes to the buyer in accordance with Section 447 of the German Civil Code (BGB) no later than upon handover of the goods to the freight forwarder, carrier, or any other person designated for shipment, even in the case of partial deliveries or if we have undertaken additional services.

 

3. If shipment is delayed due to circumstances for which the buyer is responsible, the risk passes to the buyer as soon as the goods are ready for shipment.

 

4. Delivered goods must be accepted even if they have minor defects.

 

5. If the buyer fails to accept the subject matter of the contract within the specified time, we are entitled to set a reasonable grace period. Upon its expiration, we may dispose of the subject matter of the contract as we see fit and deliver it to the buyer within a reasonably extended period. This does not affect our rights to withdraw from the contract under the conditions of § 326 BGB and to claim damages for non-performance. If we claim damages for non-performance, we may demand lump-sum damages amounting to 20% of the agreed price. This lump sum typically covers the costs of replacement, storage, and administration. The purchaser expressly reserves the right to prove that no damage was incurred at all or that the damage was significantly less. We reserve the right to claim higher actual damages.

 

6. Call-off orders must be picked up no later than one year from the order date, unless other time periods have been agreed upon; in the event of non-call-off, the provisions of paragraph 5 shall apply accordingly.

 

• 7 Retention of Title

 

1. We reserve title to the delivered goods until full payment has been made for all of our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

 

2. Until full payment of the secured claims has been made, the goods subject to retention of title may neither be pledged to third parties nor transferred as security. The purchaser must notify us immediately in writing in the event that a petition for the opening of insolvency proceedings is filed or if third parties (e.g., through attachments) seize the goods belonging to us. To the extent that the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by us.

 

3. In the event of a breach of contract by the purchaser, in particular failure to pay the purchase price when due, we are entitled, in accordance with the statutory provisions of the German Civil Code ( ), to rescind the contract and/or demand the return of the goods on the basis of the retention of title. A demand for return does not simultaneously constitute a declaration of rescission; rather, we are entitled merely to demand the return of the goods and to reserve the right to rescind the contract. In the event that the customer fails to pay the purchase price due, we must have unsuccessfully set a reasonable deadline for payment before asserting these rights. This applies only to the extent that setting such a deadline is not dispensable under applicable law.

 

4. Unless otherwise specified, the purchaser is authorized, pursuant to Section 7(4)(c) of these General Terms and Conditions of Sale, to resell and/or process the goods subject to retention of title in the ordinary course of business. In such cases, the following provisions apply in addition:

 

a) Products created through combination, mixing, or processing of our goods are subject to retention of title at their full value, whereby we are deemed the manufacturer. In the event that the title of third parties to their goods remains in effect upon combination, mixing, or processing with our goods, we acquire co-ownership in proportion to the invoice values of the combined, mixed, or processed goods. In all other respects, the same provisions apply to the resulting product as to the goods delivered under retention of title. The purchaser also assigns to us, for security purposes, any claims against a third party arising from the combination of the goods subject to retention of title with real property. In such a case, we accept the assignment.

 

b) The purchaser hereby assigns to us, as of this moment, in full or in the amount of our potential co-ownership share pursuant to Section 7(4)(a) of these General Terms and Conditions of Sale (AVLB), for security purposes, the claims against third parties arising from the resale of the goods or the product, in the amount of the final invoice amount agreed upon with us (including value-added tax). We accept this assignment. The obligations of the purchaser set forth in Section 7(2) of these General Terms and Conditions of Sale also apply with respect to the assigned claims.

 

c) The purchaser remains authorized, alongside us, to collect the claim. As long as the purchaser meets its payment obligations to us, there is no impairment of the purchaser’s ability to pay, and we do not assert the retention of title by ex ly exercising a right pursuant to Section 7(3) of these General Terms and Conditions of Sale, we undertake not to collect the claim. If we assert a right pursuant to Section 7(3) of these General Terms and Conditions of Sale, we may require the purchaser to disclose the assigned claims and their debtors, as well as to provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the purchaser’s right to resell and to process the goods subject to retention of title

 

d) In the event that the realizable value of the collateral exceeds our claims by more than 10%, we shall release collateral of our choice at the purchaser’s request.

 

5. The purchaser is obligated to treat the purchased goods with due care as long as ownership has not yet been transferred to him. In particular, he is obligated to insure them at his own expense against theft, fire, and water damage at replacement value. If maintenance and inspection work must be performed, the purchaser must carry it out in a timely manner at his own expense.

 

• 8 The Buyer’s Claims for Defects

 

1. The purchaser’s rights in the event of material defects or defects of title are governed by statutory provisions, unless otherwise specified below. Warranties are assumed only if they are expressly agreed upon in writing; no warranty beyond this is granted.

 

2. The warranty is void if the goods are not used or processed in accordance with their intended purpose. The purchaser is responsible for complying with the technical and legal requirements specified by the manufacturer or seller, as well as for proper assembly, installation, and use.

 

3. Excluded from the warranty and any guarantees are all wear parts as well as parts that, due to their nature, are subject to natural wear and tear. This applies in particular to seals, screws, clamping inserts, standard and operating parts, soft jaws, and gripping jaws.

 

4. Claims for defects do not apply to damage resulting from improper handling, failure to follow operating instructions, unsuitable or improper use, natural wear and tear, excessive strain, or modifications made by the purchaser or third parties.

 

5. Liability for material defects and defects of title is excluded to the extent that the purchaser was aware of the defect at the time the contract was concluded or failed to become aware of it due to gross negligence (Section 442 of the German Civil Code (BGB)).

 

6. Liability for damage to life, limb, and health, as well as for gross negligence, remains unaffected; to this extent, any exclusion or limitation of liability is invalid even in business transactions (Section 307 of the German Civil Code (BGB)).

 

7. The statute of limitations for claims for defects is 1 year, unless mandatory statutory provisions provide for a longer period. A shortening of the statute of limitations is excluded for damages resulting from injury to life, body, or health, as well as for gross negligence.

 

8. The purchaser’s claims for defects shall only exist to the extent that the purchaser has fulfilled its statutory obligations to inspect and give notice (§§ 377, 381 HGB). If the goods are intended for installation or are intended for further processing, an inspection must be conducted immediately prior to processing. Written notice must be given to us without delay if a defect becomes apparent during delivery, inspection, or at a later date. Obvious defects must be reported in writing within 5 business days of delivery, and hidden defects within the same period after their discovery. In the event that the purchaser fails to fulfill or neglects its obligation to conduct a proper inspection and/or report defects, our liability for defects that were not reported, or were not reported in a timely or proper manner, is excluded in accordance with statutory provisions. If the goods were intended for assembly, fitting, or installation, this also applies if the defect became apparent only after the relevant processing as a result of non-compliance with or breach of one of these obligations. In this case, the purchaser is not entitled to any claims for reimbursement of “installation and removal costs.”

 

9. If the delivered goods are defective, we have the right to choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement). If the type of subsequent performance we choose is unreasonable for the customer in a specific case, the customer may refuse it. However, we reserve the right to refuse subsequent performance under the conditions provided by law. In addition, we are entitled to make the subsequent performance we are to provide contingent upon the customer’s payment of the purchase price due. The customer, however, has the right to withhold a portion of the purchase price that is proportionate to the defect.

 

10. The purchaser must grant us the necessary time and opportunity to perform the remedial performance. In particular, the purchaser must hand over to us the item for which he has claimed a defect for inspection purposes. In the event that we make a replacement delivery of a defect-free item, the purchaser must return the defective item to us in accordance with statutory provisions. However, the purchaser is not entitled to a right of return.

 

11. Unless we have contractually agreed to do so, subsequent performance does not include the removal, dismantling, or deinstallation of the defective item, nor does it include the installation, fitting, or assembly of a defect-free item. This does not affect the customer’s claims for reimbursement of “installation and removal costs.”

 

12. We will reimburse the expenses necessary for inspection and subsequent performance (transportation, labor, and material costs, as well as, if applicable, removal and installation costs) in accordance with statutory provisions and these General Terms and Conditions of Sale (AVLB) in the event that a defect exists. However, we may demand reimbursement from the purchaser for costs incurred as a result of an unjustified request to remedy a defect if the purchaser knew or should have known that no defect actually existed.

 

13. The purchaser has the right to remedy the defect itself and to demand reimbursement of the expenses objectively necessary for this purpose if there is an urgent need (e.g., in the event of a risk to operational safety or to prevent disproportionate damage). The purchaser must inform us immediately in the event of self-remediation. In the event that we would be entitled to refuse subsequent performance in accordance with statutory provisions, the purchaser has no right to remedy the defect on its own.

 

14. The purchaser may rescind the purchase contract or reduce the purchase price in accordance with statutory provisions if a deadline set by the purchaser for subsequent performance has expired without result or is dispensable under statutory provisions. However, the purchaser has no right of rescission in the case of a minor defect.

 

15. Claims by the purchaser for reimbursement of expenses pursuant to § 445a(1) of the German Civil Code (BGB) are granted to the extent that the purchaser has provided subsequent performance to a consumer and the statutory requirements are met. Otherwise, claims for reimbursement of expenses are excluded.

 

16. Claims for damages or claims for reimbursement of futile expenses by the purchaser (§ 284 BGB) shall exist, even in the event of a defect, only in accordance with § 10 of these General Terms and Conditions of Sale.

• 9 Industrial Property Rights and Copyrights, Legal Defects

 

1. We are obligated to deliver the goods to the agreed-upon destination free from third-party industrial property rights and copyrights (“Property Rights”). If a third party asserts justified claims against the purchaser due to an infringement of intellectual property rights by deliveries made by us and used in accordance with the contract, we shall be liable to the purchaser within the period specified in § 8(7) of these General Terms and Conditions of Sale in accordance with the following provisions.

 

2. At our discretion and at our expense, we will either obtain a right of use for the deliveries in question, modify them so that the intellectual property right is not infringed, or replace them. If we are unable to do so under reasonable terms, the purchaser is entitled to the statutory rights of rescission or reduction. The purchaser may only claim reimbursement for futile expenses if we are found to have acted with intent or gross negligence. Our obligation to pay damages is governed by Section 10 of these General Terms and Conditions of Sale.

 

3. The foregoing obligations shall apply only to the extent that the Customer promptly notifies us in writing of the claims asserted by the third party, does not acknowledge any infringement to the third party , and we reserve the right to take all defensive measures and conduct settlement negotiations. If the Customer ceases use of the service, the Customer is obligated to inform the third party that the cessation of use does not constitute an acknowledgment of an intellectual property rights infringement.

 

4. Claims by the customer are excluded to the extent that the customer is responsible for an infringement of intellectual property rights or if the infringement is caused by the customer’s specifications, by a use that we could not have foreseen, by a modification made by the customer, or by the use of the service in conjunction with products not supplied by us.

 

5. In all other respects, § 8 of these General Terms and Conditions of Sale applies to defects of title. The customer’s claims for damages are governed by § 10 of these General Terms and Conditions of Sale.

 

6. To the extent that we are not liable under § 10 of these General Terms and Conditions of Sale, any claims by the customer against us or our agents for defects in title beyond or other than those governed by § 8 of these General Terms and Conditions of Sale are excluded.

 

•  10 Other Liability

 

1. Unless otherwise provided in these General Terms and Conditions of Sale, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

 

2. Under strict liability, we are liable for damages—regardless of the legal basis—only in cases of willful misconduct or gross negligence. In cases of simple negligence, subject to statutory limitations on liability (e.g., due care in our own affairs; minor breach of duty), we are liable only:

 

a) for damages resulting from injury to life, body, or health

 

b) for damages resulting from a breach of a material contractual obligation (obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the contracting party relies and is entitled to rely). In such cases, however, our liability is limited to compensation for foreseeable, typically occurring damages.

 

3. The limitations of liability arising pursuant to § 10(2) of the AVLB also apply to third parties as well as in cases of breaches of duty by persons for whose fault we are liable under statutory provisions. To the extent that a defect was fraudulently concealed and a warranty regarding the quality of the goods was assumed, the limitations of liability do not apply. This also applies to claims by the purchaser under the Product Liability Act.

 

4. The purchaser may rescind the contract or terminate it due to a breach of duty that does not result from a defect only if we are responsible for the breach of duty.

 

5. The customer’s right to terminate the contract at will pursuant to § 648 BGB is excluded. The right to terminate for good cause, as well as mandatory statutory special termination rights (e.g., pursuant to § 650r BGB), remain unaffected. In all other respects, the statutory requirements and legal consequences apply.

 

• 11 The Customer’s Obligations to Cooperate

 

1. The customer is obligated to provide us with all information, documents, and sketches necessary for the performance of the contract in a timely and complete manner, particularly in the case of custom-made products. If the customer fails to fulfill this obligation, our delivery deadlines shall be extended accordingly. The customer’s cooperation shall be provided without separate compensation, unless expressly agreed otherwise.

 

2. The purchaser must notify us immediately in writing if goods or materials ordered by the purchaser or made available to the purchaser are no longer needed, either in whole or in part. To the extent that residual stock or custom-made products result from a subsequent change in the purchaser’s planning, the purchaser is obligated to accept them and bear the resulting costs (including any disposal costs), provided that we have informed the purchaser in advance of the corresponding minimum order quantities or custom-made products.

 

3. The purchaser warrants that the products delivered by it for processing are suitable for their intended purpose. We are not obligated to inspect the products delivered by the purchaser for their quality or suitability.

 

4. Within the framework of an ongoing business relationship, and following the inspection, testing, and approval of a workpiece, the customer is obligated to inform us, without being asked and in writing, of any changes to the product or the manufacturing conditions (e.g., replacement of tools or machines, introduction of new processes), provided that these changes may affect the workpieces to be processed.

 

5. We do not verify the accuracy or suitability of the purchaser’s instructions regarding material selection or other specifications. The purchaser is obligated to ensure, on its own responsibility, the quality of the materials it specifies or provides, as well as their compliance with legal and technical regulations.

 

6. If, following a written reminder, the customer defaults on fulfilling its obligations to cooperate or provide materials, we are entitled to exercise our statutory rights, in particular the right to withdraw from the contract or to claim damages (Sections 642, 643 of the German Civil Code (BGB)).

 

7. Returns of goods are permitted only with our express consent. Returns must be made carriage paid, stating the order number and delivery date, in the original packaging, and in undamaged condition. For the administrative costs associated with the return, we charge a flat fee of 15% of the value of the goods, with a minimum of €30.00 plus applicable VAT. This flat fee typically covers the costs of inspection, repackaging, and administration. The customer reserves the right to prove that the actual costs were lower; we reserve the right to prove and claim higher costs in individual cases.

 

• 12 Governing Law and Jurisdiction

 

1. These General Terms and Conditions of Sale and the contractual relationship between us and the customer are governed by the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

 

2. If the purchaser is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law, or a special fund under public law, our place of business in Oyten, Lower Saxony, shall be the exclusive—and also international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the purchaser is an entrepreneur within the meaning of § 14 of the German Civil Code (BGB).

 

3. We are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale (AVLB) or a prior individual agreement, or at the purchaser’s general place of jurisdiction. This does not affect any overriding statutory provisions (exclusive places of jurisdiction).