Article 1 Scope
(1) The sale of our products - the Henze Boron Nitride Products (Henze BNP) AG - and all related services are carried out exclusively under the following conditions. Any deviating conditions of the customer shall only become part of the contract if Henze BNP expressly confirms this in writing. Even if Henze BNP does not expressly object to the deviating conditions, this does not imply the tacit acceptance of an order, e.g. by the order acceptance. These GTCS apply only if the buyer is an entrepreneur (Article 14 BGB), a legal entity under public law or represents a special fund under public law.
(2) These GTCS apply to current and future sales transactions, even if Henze BNP does not expressly refer to them. Decisive is the version of the GTCS which is valid at the time the contract was concluded (available under http://www.henze-bnp.com/Extras/Terms.php.
(3) By placing an order with Henze BNP, the customer accepts the sole applicability of these GTCS.
(4) References to the validity of statutory provisions only have clarifying significance. Even without such clarification, the statutory provisions therefore apply unless they are directly amended or expressly excluded in these GTCS.
Article 2 Offer, conclusion of contract
(1) The contract language is German.
(2) Offers of Henze BNP are always non-binding.
(3) Orders must contain the information necessary to prepare an order confirmation and to manufacture the goods.
(4) Contracts with Henze BNP are only concluded if Henze BNP has confirmed the acceptance of the order in text form to the customer. Verbal side agreements, additions and changes must also be confirmed in writing by Henze BNP in order to be valid.
(5) The content of the contract and the obligations of the parties are determined by the content of the order confirmation. If the content of the order confirmation deviates from the customer's order, the latter must immediately notify Henze BNP in writing. If there is no notification of deviation, the deviation is considered approved.
Article 3 Duties of Henze BNP
(1) The contractual performance obligations of Henze BNP result from the order confirmation.
(2) Taking into account the legitimate interests of the customer, Henze BNP reserves the right to make minor deviations, which only reduce the value and suitability of the delivery item insignificantly. Subject to the same conditions, technical changes / improvements are reserved which do not affect the intended use.
(3) Unless otherwise agreed, Henze BNP is liable to provide the goods ready for collection at the agreed place.
Article 4 Transfer of risk, delivery dates
(1) The risk shall pass to the customer as soon as the goods are ready for collection at the agreed place of delivery, which results from the delivery conditions agreed in writing. The Incoterms © 2010 currently apply.
(2) Our deliveries and the respective transfer of risk shall in principle be carried out free delivery warehouse in Germany (EXW). If transport is agreed with the customer, delivery and transfer of risk are free carrier inland (FCA). Deviations from this can be individually negotiated with the customer accordingly and must be noted on the order confirmation.
(3) Delivery dates within the meaning of these GTCS are the dates on which goods shall be ready for collection.
(4) The delivery dates mentioned are always non-binding.
(5) Even if delivery dates are expressly designated as binding, these are only binding if the customer has provided the cooperation necessary on his part, in particular the naming of the desired specifications, obtaining and submitting the required official certificates, making any downpayments which have been agreed, etc.
Article 5 Export of products
(1) As a matter of principle, goods shall be delivered without any export licenses which may be required. Obtaining such approvals shall basically be the responsibility of the customer. Deviations from this can be individually negotiated with the customer and must be noted accordingly on the order confirmation.
(2) Unless otherwise agreed, the goods are not sold for export by the customer or a third party. Any permits which may be necessary must also be obtained by the customer.
(3) Should an agreed delivery be delayed due to export restrictions or therefore not possible, Henze BNP may withdraw from the underlying contract.
(4) In carrying out the legal transaction and in particular in the case of a resale of the goods purchased from Henze BNP, the customer guarantees to observe and comply with all relevant import and export control regulations and to obtain all necessary import or export licenses. The customer undertakes to indemnify Henze BNP against any claims asserted by third parties against Henze BNP if it should breach any relevant regulations concerning import and export controls and to compensate Henze BNP for the damage resulting from such claims.
(5) The customer undertakes to inform Henze BNP without delay by means of a separate letter about any known prohibitions or approval requirements in accordance with the relevant provisions on import and export controls regarding delivery of the ordered goods and equipment to Henze BNP.
(6) If the delivery of the ordered goods and equipment is subject to a reservation of approval, the customer undertakes to do its utmost to grant the permit and in particular to provide Henze BNP with all the information and documents required for this purpose.
(7) If the customer violates any of the aforementioned provisions and a claim is therefore made against Henze BNP by a third party or if delivery of the ordered goods and equipment is thus not possible, Henze BNP is entitled to declare its withdrawal from the contract. The right to assert claims for damages remains unaffected.
Article 6 Retention of title
(1) Until the fulfillment of all claims arising from the business relationship, for whatever legal reason, including future or contingent claims, also from simultaneous or contracts concluded later on, the delivered goods remain the property of Henze BNP. This also applies if payments are made on specially designated claims or by check or bill of exchange.
(2) The customer may only sell the reserved goods in the ordinary course of business at his normal terms and conditions and as long as he is not in default, but only on condition that the claims from the resale acc. paragraphs 4 to 6 pass over to Henze BNP. The customer is not entitled to other dispositions concerning the reserved goods.
(3) Any working or processing, mixing or combination of the reserved goods with other goods by the customer shall always be carried out for Henze BNP. If this is done on the basis of a contract with a third party, the obligations hereunder only apply to the customer. If the other object is the main object of working or processing, mixing or combination of the reserved goods, Henze BNP is entitled to co-ownership of the new item in proportion to the value of the reserved goods. If the customer resells the new item, paragraph (2) shall apply accordingly.
(4) Claims and all ancillary rights of the customer (including securities of a third party or surrogates for claims against third parties) resulting from the resale of the reserved goods are now already assigned to Henze BNP. The assigned claims serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not supplied by Henze BNP, the assignment of the claim from resale shall only apply for the amount of the resale value of the respective reserved goods sold. If the customer accepts the claim from the resale of reserved goods in an existing current account relationship with his customer, the full amount of the current account claim is assigned to Henze BNP. After a balance has been made, it will be replaced by the recognized balance, which is deemed assigned up to the amount of the original current account claim.
(5) The customer is entitled to collect claims from the resale insofar as Henze BNP does not revoke this right. The revocation is only permissible if this is necessary and appropriate to secure the receivables against the customer, in particular in case of late payment.
(6) The customer is only entitled to assign the claim - including the sale of claims to factoring banks - with the prior written consent of Henze BNP. At the request of Henze BNP, he is obliged to inform his customers immediately of the assignment and to provide the information and documents required for collection. In the case of payment by check, ownership of this passes to Henze BNP as soon as the customer buys it. If payment is made by a bill of exchange, the customer shall hereby assign the resulting rights to Henze BNP. The handover of these documents is replaced by the customer keeping them for Henze BNP or, if he does not acquire the direct possession of them, he may assign his claim for restitution against third parties in advance to Henze BNP. He will hand over these papers with his endorsement without delay.
(7) If Henze BNP asserts the retention of title, this shall only be deemed to be a withdrawal from the contract if this is explicitly stated. The right of the customer to own the reserved goods expires if he does not fulfill his obligations under this or any other contract.
(8) The customer must immediately notify Henze BNP of a seizure of goods or other impairment by third parties. Pledges or security assignments require their respective permission.
(9) If the value of the existing securities exceeds the secured claims by more than 20% in total, Henze BNP is obliged to release securities of its own choice at the customer's request.
(10) The customer is obligated to store the goods subject to retention of title free of charge, store them separately or mark them and insure them against normal dangers. The customer hereby assigns to Henze BNP any claims against third parties due to loss or damage of these goods. The assignments are hereby accepted. An assignment of the claims against Henze BNP requires the consent of Henze BNP.
(11) If the right within the scope of the sold goods does not permit retention of title but allows the seller to reserve other similar rights to the delivery item, the buyer shall be obliged to provide Henze BNP with another adequate security. The buyer undertakes to cooperate in the fulfillment of the required formalities.
Article 7 Obligations of the customer, prices, transfer of risk
(1) The customer is obliged to provide the necessary cooperation to make a downpayment if necessary and to pay the purchase price. In addition, the customer has to bear the costs of the payment transaction (for example, transfer fees of his own bank).
(2) Unless otherwise agreed, the prices quoted are net prices in Euros plus applicable VAT, including packaging, but excluding delivery and shipping costs. A discount deduction is generally not granted. Deviations from this can be individually negotiated with the customer and must be noted accordingly on the order confirmation.
(3) Payments are to be made cashless by bank transfer. Any costs or payment fees incurred by the customer must be borne by the customer.
(4) The purchase price is due upon the transfer of risk in accordance with Article 4. The customer will settle the invoices subject to individually agreed payment periods within a maximum of 30 days (term of payment). If the payment date is exceeded, at the latest from the date of default, Henze BNP shall be entitled to charge interest amounting to the respective bank rates for overdrafts, but at least the statutory default interest.
(5) In the event of late payment by the debtor, Henze BNP shall additionally be entitled to a lump sum payment of EUR 40.00. This also applies to advance or installment payments. After the due date, Henze BNP will charge an appropriate lump sum of EUR 5.00 for each reminder. The customer is at liberty to prove to Henze BNP that a lower damage or no damage has occurred.
(6) The delivered material must be checked by the customer before processing for quality, dimension and measuring accuracy. Certificates, confirmations and test reports of third parties do not exempt the customer from this.
(7) Agreed prices always refer only to the specific order of the customer. For future orders, Henze BNP is no longer bound to these prices.
(8) If the customer is in arrears of payment, which indicates a risk of fulfillment of the claim by Henze BNP, he is obliged to make the goods available for collection upon request by Henze BNP and to allow Henze BNP to enter the operations of the customer to remove the goods. In this case, Henze BNP is also entitled to prohibit further processing and removal and/or taking the delivered goods away. This does not apply if the customer is not responsible for the payment arrears.
(9) The customer is obligated to specify in the inquiry as well as on the order specific requirements affecting the execution of the order and to inform Henze BNP about this so that Henze BNP can comply with the special requirements in advance and during the processing of the order.
Article 8 Offsetting and retention ban
(1) The offsetting of the customer against claims by Henze BNP is excluded.
(2) Henze BNP is entitled to offset all claims which exist against the customer.
(3) The offsetting ban for the customer does not apply if the claims are undisputed or legally binding.
(4) The customer has no right of retention.
(5) The prohibition of retention does not apply if the claims entitling to retention are based on the same contractual relationship or are undisputed or legally established.
(6) In the event of defects, the customer has a right of retention if the delivery is obviously defective and/or the customer obviously has a right to refuse acceptance of the work. In such a case, however, the customer is only entitled to withhold payment insofar as the retained amount is in a reasonable proportion to the defects and the anticipated costs of subsequent performance, in particular to remedy defects.
(7) The customer is not entitled to assert claims and rights due to defects if the customer has not made due payments and the amount due is in reasonable proportion to the value of the defective delivery or work.
Article 9 Transport damages
(1) The customer is obliged to check the goods for completeness and integrity upon receipt.
(2) In the case of externally visible transport damage, e.g. external damage to the packaging, the customer must have this confirmed before acceptance of the delivery by the responsible employee of the transport company and/or by the transport operator. A remark on the consignment note is not sufficient.
(3) If transport damage exists which cannot be identified externally, the damage must be reported to the transport company within seven days after delivery of the goods, in any case in text form.
(4) In addition, the damage and the notification to the transport company must be communicated in writing to Henze BNP within the specified period.
(5) If the customer fails to report transport damage in good time, Henze BNP shall only be liable for such damage if and insofar as replacement services have been provided by the carrier, or a transport insurance, to Henze BNP.
(6) Liability for transport damage is limited to the amount of the replacement service.
Article 10 Warranty
(1) The warranty period is one year and/or five years, insofar as it is a case pursuant to Art. 438 para. 1 No. 2 b) BGB.
(2) In the case of justified, immediate notification of defects, Henze BNP will as a matter of principle take back faulty goods and will replace them. Henze BNP is entitled to repair the goods at its own discretion
(3) Only if Henze BNP does not comply with these obligations or if the rectification finally fails will the customer be entitled to the statutory warranty rights. A repair shall be deemed as failed in each case only after the unsuccessful second attempt to rectify it. Only then can claims for damages or other warranty rights be demanded by the customer in accordance with the law.
(4) The warranty is excluded if the transport damage has not been reported in due time acc. to Article 9.
(5) The agreed quality results from the product description of Henze BNP subject to other agreements from the respective order confirmation, insofar as no agreement has been made there,. If no quality is mentioned there, goods of average type and quality are to be provided.
(6) Also valid within the warranty period: Warranty is excluded if the customer has not complained of an obvious defect immediately upon receipt of the goods. The warranty is also excluded if it concerns damage that has not been reported by the customer in accordance with Article 9 and no compensation has been made. If a hidden defect becomes apparent later on, the customer must notify this defect immediately, but no later than four working days after its discovery. The defect claim must be made in text form with a precise description of the defect.
(7) The rights due to a material defect shall cease to exist if the customer does not promptly give Henze BNP the opportunity to convince itself of the material defect, in particular by immediately making the rejected goods or samples thereof available to Henze BNP upon request for inspection.
(8) Furthermore, claims for defects do not exist in case of insignificant deviations from the agreed quality or in case of insignificant impairment of usability.
Article 11 Return of loaned packaging
In the event of non-return of protective containers and other loaned packaging, Henze BNP reserves the right to charge the buyer for the costs incurred by Henze BNP.
Article 12 Force Majeure
Cases of force majeure, in particular strikes, lockouts, operational or transport disruptions, even with suppliers of Henze BNP, result in a suspension of the contractual obligations of the parties concerned for the duration of the disruption and to the extent of their effect. If the resulting delays exceed the period of six weeks, both contracting parties shall be entitled to withdraw from the contract with regard to the scope of services affected. Other claims do not exist.
Article 13 Liability of Henze BNP
(1) Liability shall exist if Henze BNP, its legal representatives or vicarious agents culpably (intentionally or negligently) have caused injury to life, limb or health.
(2) Liability shall exist if Henze BNP, its legal representatives or vicarious agents have caused any other damage through intentional or grossly negligent breach of duty.
(3) Liability shall also exist insofar as Henze BNP, its legal representatives or vicarious agents have culpably (intentionally or negligently) infringed one of the essential contractual obligations of this contract. An essential contractual obligation exists if the fulfillment of the order enables the proper execution of the contract and the customer regularly trusts and can rely on their compliance. In this case, liability is limited to the extent of the foreseeable and immediate damages.
(4) Liability under the Product Liability Act remains unaffected.
(5) Data protection claims are not covered by this liability regulation.
(6) Further liability of Henze BNP shall be excluded.
Article 14 Secrecy
The contracting parties shall mutually undertake to keep secret all information which comes to their knowledge in connection with the contractual relationship, which shall be identified as confidential or recognizable as a business or trade secret in other circumstances, and – insofar as this is not necessary to achieve the purpose of the contract - to neither record, pass on nor exploit it.
Article 15 Privacy
(1) The contracting parties observe the data protection regulations. Each contracting party commits the persons working on its behalf according to Article 53 BDSG (nF) in writing to data secrecy and informs the contracting party upon request.
(2) Insofar as Henze BNP processes personal data during the execution of the order, Henze BNP shall act on behalf of the customer in terms of Art. 28 EU GDPR. Henze BNP will therefore only use personal data in accordance with a contract to be concluded separately for order processing.
Article 16 Choice of law, place of performance, place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to the contract, excluding the provisions of the Vienna UN Convention dated April 11, 1980 on Contracts for the International Sale of Goods and the conflict of laws which rule private international law.
(2) Place of performance of the contract is Lauben.
(3) The exclusive place of jurisdiction - also international - for all disputes arising from this contract or its execution is Kempten / Allgäu. If the customer has his general place of jurisdiction in Germany, Henze BNP can also sue him at this place at his own discretion.
(4) This text is subject to German law and should be interpreted in accordance with German legal understanding. Other language versions are for information purposes only and are not part of the legal transaction. In the case of deviations between the German and other language versions, therefore, only the German version applies.
Article 17 Miscellaneous
(1) The assignment of customer claims against Henze BNP to third parties is excluded. Article 354a HGB remains unaffected.
(2) All declarations made for the amendment of this contract or on the basis of this contract must be in writing, unless otherwise stipulated in the GTCS.
(3) The effectiveness of the remaining GTCS shall not be affected by the ineffectiveness of individual provisions. In the case of an ineffective provision, the contracting parties are obliged to negotiate an effective substitute for the invalid provision that comes closest to the economic purpose pursued by the contracting parties.
Lauben, March 2019