General commercial terms and conditions of manufacturer Heller Klavierbau, Ringstr. 4, 74927 Eschelbronn
1 Scope
1.1 These sale conditions apply exclusively to entrepreneurs, legal persons under public law, or public special funds as defined by § 310 paragraph 1 BGB (German Civil Code). Conditions specified by the purchaser that are in opposition to, or deviating from our terms and conditions are only recognized by us if we expressly agree to their applicability in writing.
1.2 These sale conditions also apply to all future business with the purchaser as far as it is concerned with related legal transactions.
2 Prices and payment
2.1 Unless otherwise agreed in writing, our prices apply excluding packaging, freight, postage, VAT and insurance.
2.2 The payment of the purchase price shall be made exclusively to the indicated accounts.
2.3 Unless otherwise agreed, the purchase price is payable within 30 days from delivery. Default interest shall be 8% above the relevant annual base rate. We reserve the right to claim higher damages for late payment.
2.4 Unless a fixed price agreement has been made, the right to reasonable price changes is reserved in case of changes in labor, material, and distribution costs for deliveries made 3 months after the conclusion of the contract or later.
2.5 Where we have indisputably delivered partly defective goods, our contract partner is nevertheless obliged to make the payment for the non-defective portion, unless he has no interest in the partial delivery.
3 Offsets and rights of retention
The purchaser has the right to be compensated only when his counterclaims have been legally established or are uncontested. In addition, the purchaser may exercise a right of retention only if his counterclaim is based on the same contractual relationship.
4 Delivery time
4.1 The beginning of the delivery period presupposes the timely and proper fulfilment of the purchaser’s obligations. The right to object to the unfulfilled contract remains reserved.
4.2 If the purchaser falls into default of acceptance or if he culpably breaches other of his cooperation duties, we shall be entitled to demand compensation for the loss resulting from this fact, including any extra expenditures. The right to make further claims is reserved. If the above requirements are made, the risk of accidental loss or deterioration of the delivered item is transferred to the purchaser at the moment in which the acceptance or payment of the item is delayed.
4.3 We shall pay damages for each full week of delay in delivery caused by us, but not intentionally or out of gross negligence, equal to 2 % of the delivery’s value, but limited to no more than 10% of the same.
4.4 The customer is only entitled to rescision, in case of non-compliance with a delivery deadline, if we are responsible for the non-compliance of the delivery and if he set us an appropriate extension in writing after the delivery time. Reminders and extension settlements must be made in writing.
4.5 We are entitled to make partial deliveries if this is reasonable for the customer. The buyer is obliged to accept the partial deliveries immediately.
4.6 Other legal claims and rights of the purchaser due to delays in delivery remain unaffected.
5 Transfer of risk when shipping
If the goods are shipped to the purchaser at his request, the risk of accidental loss or accidental deterioration of the goods is transferred to the purchaser upon dispatch, at the latest upon leaving the factory. This applies regardless of whether the goods are shipped from the place of delivery and regardless of who pays the shipping costs.
6 Reservation of ownership
6.1 We reserve ownership of the delivered goods until all claims from the delivery contract are paid in full. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to reclaim the goods if the purchaser breaches the contractual terms.
6.2 The purchaser is obliged to take care of the delivered items until such time as the ownership is transferred to him. Until such a time as the ownership has been transferred, the purchaser must notify us immediately in writing if the delivered goods have been seized or are exposed to any intervention by third parties. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO (Code of Civil Procedure), the purchaser is liable for the losses incurred.
6.3 The purchaser is entitled to resell the reserved goods in the ordinary course of business. The purchaser cedes to us any claims by the new customer arising from the resale of the goods in the amount of the mutually agreed final invoice amount (including VAT). This assignment shall apply regardless of whether the purchased goods have been resold before or after being processed. The customer remains entitled to collect the receivables even after this act of transfer. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets his payment obligations from the proceeds collected, if he is not in arrears, and in particular if no petition is filed for the commencement of insolvency proceedings or suspended payments.
6.4 Any processing or transformation of the goods by the customer should always be made in our name and on our behalf. In this case, the purchaser’s vested right in the goods remains valid with respect to the processed article. If the purchased item is processed with other items not belonging to us, we acquire joint ownership of the new item in proportion to the objective value of our goods to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing is done 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 proportional joint ownership to us and safeguards the sole ownership or co-ownership for us. To secure our claims against the purchaser, the purchaser also assigns to us any receivables from third parties that arise for the purchaser as a result of the incorporation of the conditional goods in real property; we already accept this assignment now.
6.5 We undertake to release the securities we are entitled to at the purchaser’s request if their value exceeds the receivables to be secured by more than 20%.
7 Warranty and notices of defect and recourse / manufacturer redress
7.1 The warranty rights of the purchaser presuppose that the purchaser has properly fulfilled his obligation under § 377 HGB (German Commercial Code) with respect to inspection and notification of defects.
7.2 Claims for defects expire 12 months after delivery of the goods supplied by us to our purchaser. Our consent must be obtained before returning any goods.
7.3 If, despite all due care, the delivered goods contain a defect that already existed at the time of transfer of risk, we shall repair or replace the goods as we see fit, subject to timely notice. We must always be given the opportunity for subsequent fulfilment within a reasonable period. Claims for recourse are not affected by the above provision, without exception.
7.4 If the rectification of a warranty claim is not successful, the purchaser – regardless of any damage claims – can rescind the contract or reduce the payment.
7.5 Warranty claims are excluded in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear, such as damages that arise after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building sites or due to special external influences which were not foreseen under the contract. If improper repairs or modifications are made by the purchaser or third parties, no defect claims can be made for these or for any damages resulting from these.
7.6 Claims on the part of the purchaser for expenditures necessary for the purpose of subsequent performance, particularly transport, travel, labor, and material costs, are excluded if these expenditures increase because the goods delivered by us were subsequently transported to a location other than the purchaser’s place of business, unless such transport is consistent with the goods’ intended use.
7.7 Claims for recourse by the purchaser against us exist only insofar as the purchaser has made agreements with his buyers exceeding the mandatory statutory warranty claims. The scope of recourse claims by the purchaser against the supplier is further regulated by paragraph 6.
8 Miscellaneous
8.1 This contract and the entire legal relations of the parties are subject to the laws of the Federal Republic of Germany, excluding the UN Sales Convention (CISG).
8.2 Place of delivery and exclusive jurisdiction for all disputes arising from this contract is our commercial headquarters. However, we can choose to sue the contractual partner at its headquarters.
8.3 All agreements entered into between the parties to this contract for the purpose of the fulfilment of this contract are defined in writing in this contract.
8.4 If any provisions of this contract are or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally valid provision which most closely matches the economic purpose of the invalid provision or fills this gap.
