The Heroplan Ltd., Altdorf, designs, builds and installs process plants and equipment.
Scope of Application, Conclusion of Contract
1. Our General Terms of Business (hereinafter referred to as GTB) apply exclusively. Opposite, additional or deviating Terms of the Customer are only valid if we have explicitly accepted their prevalence.
Our GTB are also valid, if we complete the delivery to the customer without any reservation, even if we have knowledge of opposite or deviating conditions in the Terms of the Customer.
2. These GTB are valid both for the complete existing and the future business relations.
Realization of Contract
1. Our offers are without engagement. Technical changes as well as changes in form, color and weight are reserved, as far as such changes will not considerable affect the interest of the customer.
2. We reserve us the ownership and copyright of the bidding documents – in particular figures, charts, calculations, confidential and miscellaneous documents. The customer is only allowed to forward the documents to third persons, if we have given an explicit written acceptance in advance.
3. We can accept a received order within two weeks. The acceptance takes place either as written confirmation or by providing the ordered service.
4. Following orders or modifications of the primary order are only valid if they will be also confirmed from us within two weeks.
Prices – Discount – Charging – Price alignment
1. In case something else is not stated explicitly with the customer, our named prices in Appendix 1 (Price list) are valid. If neither something else is not stated explicitly nor a price list is enclosed, for the HOAi for Engineering & Planning services is valid for price determination.
2. In case something else is not stated explicitly with the customer, the costs of package are not included in our prices, and will be invoiced separately.
3. The value added tax is not included in our prices. It will be separately accounted in the amount of the legal requirements which are valid on the day of issuing the invoice.
4. A special written agreement is required for the deduction of a discount.
5. In case nothing else is stated with the contractual partner the purchase price is payable net (without deduction) within 30 days after date of invoice. The legal requirements regarding consequences of delayed payment apply.
6. The right of charging will be entitled to the customer in case, his counterclaims are legal assessed, indisputable or accepted by us. In addition the customer is insofar allowed to exercise a lien, as his counterclaim is based on the same contractual relationship.
7. These regulations are also valid for advance payments.
8. As far as the contract is cancelled or is annihilated before completion of the project , a proportionate payment in amounting to the performed service is entitled to us. Legal claims are unaffected. .
Transfer of perils
1. In case nothing else is stated in the order confirmation, the delivery is agreed ex factory.
By request of the customer the delivery can be covered by transport insurance; the costs thereby incurred must be paid by the customer.
2. The orderer is bounded to receive the conventionary created goods. On the bases of unessential defects he is not allowed to refuse acceptance. The acceptance apply as tacitly agreed, if the orderer did not declare the acceptance within twelve working days after the goods were surrendered or if the orderer starts up and uses the product of the contract.
3. For the return of package special agreements are valid.
Time of delivery - Liability for delayed delivery
1.The agreement of a delivery date or delivery time takes place under the caveat of the correct and arrives in good time by our sub-supplier. This is only valid if we are not responsible for the non-delivery. 2. Our stated delivery date or delivery time is only obliging if all technical issues have been clarified
and the client fulfilled his obligations (e.g. license of diagrams or documents as well as to perform services provided by the customer) well timed and accordingly .
The exception of not fulfilled contracts is reserved.
3. In case of default of acceptance or the customer hurts other obligations to cooperate, then we are entitled to require our damage including any multi-expenditures. Additional requirements remain reserving. Furthermore danger of a coincidental destruction or a coincidental degradation of the purchase thing changes into the time on the customer, in whom this is guessed/advised in acceptance or debtor's default.
4. We are liable according to the legal regulations as far as the sales contract is a [fixgeschäft] according to §286 II Nr. 4 BGB or § 376 HGB. We are liable according to the legal regulations, if we are responsible for a delayed delivery failure and the customer is allowed to make valid that an interest in the further fulfilment of a contract does not exist no more. Furthermore we care liable according to the legal regulations, if the delayed delivery is based on deliberate or roughly negligent violation of contract which can be represented from us. Being to blame for our representatives or executing aides is to be added us. If the failure to deliver is not based to deliberate violation of contract which can be represented on one from us to, our indemnity is limited to the predictable, typically occurring damage.
5. We are also liable regarding the legal requirements, as far as the delayed delivery, where we are responsible for, is based upon on culpably violating an essential contractual obligation.
But in this case the liability for indemnity is restricted to the predictable, typically occurring damage.
1. If the customer has found defects, he has to tell us in writing as quickly as possible
2. Any claims regarding defects made by our customer, require, that he or other third people did not try to make any changes or rectification of defects on the subject of the contract.
3. Any claims regarding defects made by our customer, require, that he accordingly complies with his owed analysis and reprehension obligation.
4. For the appearance and workmanship only our product description in the offering is agreed. Public announcements and advertisements are not a declaration for appearance.
5. The customer does not get any guaranties from us.
6. If a defect exists, the customer is authorized to choose between a removal of the defects or a new good without defects.
7. If the customer got inadequate assembly instructions we are only bounded to deliver an adequate assembly instruction.
8. If the reparation fails, the customer is authorised to cancel the contract or to request a reduction.
9. We are liable regarding the legal regulations, if the customer asserts a claim, which is based on intent or culpable negligence including intent or culpable negligence of our representatives or assistants. As far as it is not possible to accuse us an intended violation of a contractual obligation , the limitation of the damage is limited to the compensation of predictable and typically occurring damage.
10. We are liable regarding the legal regulations, as far as we have violated a contractual obligation. But also in this case the limitation of the damage is limited to the compensation of predictable and typically occurring damage.
11. As far transfer of perils as the customer is authorised to claim the compensation of the damage instead of the service, our liability is limited to the compensation of predictable and typically occurring damage.
12. The liability regarding the product liability law and regarding culpably injury of life, the body and the health will remain unaffected.
13. For the rest, if not stated something else earlier, the liability is excluded.
14.The statute of limitations for the claim of defects is 12 month , calculated from transfer of perils
15. The statute of limitations in case of delivery regress ( $$ 478, 479 BGB) is untouched. It is 5 years calculated from delivery of the defected good.
Limitation of liability
1. A liability beyond the facts stated in the previous paragraph is excluded regardless of the legal claim of the claim. This applies especially for claims from default by conclusion of the contract, because of other breaches of duty or because of delicted claims for replacement of material damage.
2. The previous limitation is also valid, if the customer requests instead of the claim for replacement of the damage , usage disbursement rather than services.
3. As far as the limitation of liability is excluded or restricted against us, this applies also for the personal liability of our employees, factors, servants and assignees.
The customer is sworn to secrecy for all received charts, drawings, calculations and other material and information. Only after our explicit agreement it is allowed to distribute the information to third parties.
The Non disclosure agreement is valid, even if the contract is completed. The agreement will only expire if the charts, drawings, calculations and other material is common know ; at least 10 years after the last order;
Retention of Title – Transfer to Third Parties
1. The goods shall remain the sole and absolute property of us until the customer shall have paid us for the goods in full and any other debts or money owed to us by the customer.
If the behaviour of the customer is contrary to contract - especially by delayed payment – we are authorized to withdraw the goods. With the cancelling of the good by us it is also a cancellation of the contract. After the withdrawal of the goods we are authorized to dispose the revenue of the withdrawal to be credited against the debts of the customer less an adequate amount for the cost of the withdrawal.
2. The customer is bounded to handle the good with care. Especially he is bounded to insure on his own costs the goods against fire – water and theft damage with a sufficient amount of money regarding the replacement value. If maintenance or inspection is necessary the customer has to execute this at his own expense.
3. The customer shall notice us in written form in case of distress or other actions performed by third parties. If we need to bring suit and the third party is not able to compensate us our judicial and amicable costs of the suit, the customer is liable for the resulting outage.
4. The customer is authorised to resell the good in a trimmer course of business. But he conveys us all claims in the amount of the invoice final amount ( including VAT), which grow up for him, after the resell to his consumer or a third party; namely independent from the point, if the good was resold without or after further processing. For the collection of the claim the customer is authorized even after the conveyance. Our authority to convey the claim by our own, is not touched by this.
But we commit, not to convey the claims, as long as the customer complies with the payment obligation of the revenue of the sold good, gets in delayed payment and in particular no request for opening a composition proceedings or insolvency proceedings is made or a bankruptcy exists.
But in this case we can demand that the customer announces us the ceded claims and their debitor, including all necessary information necessary for the collection, hands out all including documents and announces the debitor the assignment.
5. The handling or change of a good by the customer shall always be conducted for us. If the good is handled with other items which are not belonging to us, we gain a co-ownership on the new item in the percentage of the value of the good (Invoice final amount including VAT) against the other handled items to the point of time when they were handled. For the good , which was developed applies the same as for the goods which were delivered with reservations.
6. If the good is mixed up inseparable with items which are not belonging to us, we gain a co-ownership on the new item in the percentage of the value of the good ( Invoice final amount including VAT) against the other mixed items to the point of time when the items were mixed. If the mix is made in such a way, that the item of the customer can be seen as main item, it is agreed , that the customer assigns us a proportionate co-ownership.
7. The customer conveys us the claim for guarantee our claims against him, which rise through the combination of the goods and land against a third party.
8. We commit to release our entitled guarantee on request of the customer, as far as the realizable value of our guarantee exceeds more than 10% of the claim which should be guaranteed.
The choice of the guarantee which should be released behoves us.
9. Forwarding planning services to a third party requires our explicit agreement.
Place of delivery
If not stated something different in the order confirmation, the place of delivery is our business location.
Jurisdiction - Rechtswahl
1. In case the customer is businessman, our business location is the jurisdiction; we are also entitled
to accuse the customer on his business location.
2. The law of the Federal Republic of Germany applies.
3. It is excluded that the UN- Business Law applies.
Agreements, which are made between us and the customer in order to fulfil the contract, require the written form. Supplements, offering extensions etc. require also the written form.