General terms and conditions of sales and delivery
- 1.1 The GTSD apply for deliveries of products and services (“Deliveries”) by HEITEC AG Electronics Division, Dr.-Otto-Leich-Strasse 16, 90542 Eckental, Germany (“HEITEC”), rendered on the basis of an agreement with a company (“Customer”).
- 1.2 Conditions contrary to these GTSD shall not apply unless HEITEC expressly consented to the contrary conditions.
- 2.1 HEITEC shall be bound by its offer for a period of 45 calendar days with effect from the date of the offer.
- 2.2 Any services that are provided in advance as part of an offer by HEITEC at the Customer’s request will be billed by HEITEC, even if no contract is concluded.
- 2.4 HEITEC reserves ownership rights and copyright to any CAD files, design documents, outlines, illustrations, plans, diagrams, calculations, etc. (“Documents”) belonging to the offer.
- 2.5 Details regarding the qualities of HEITEC’s Deliveries are shown exclusively and exhaustively in HEITEC’s product information in the catalog: Electronic Packaging Systems ("EPS Catalog") and on the Internet at www.heitec.de/de/start ((“Quality Details”)).
3. Items supplied by the Customer
- 3.1 The Customer will provide all necessary Documents to HEITEC in a timely manner.
- 3.2 It is the Customer’s responsibility to ensure that using and sharing the Documents it provides does not violate any third-party rights, regardless of the carrier medium. The Customer will promptly indemnify HEITEC and hold it harmless from related claims by third parties.
4. Delivery conditions, transfer of risk
- 4.1 Prices are valid EXW (ex-works) (HEITEC AG, Dr.-Otto-Leich-Strasse 16, 90542 Eckental, Germany) as defined by Incoterms® 2010 (“place of fulfillment”), plus packaging costs.
- 4.2 Prices are net prices in euros, plus the value-added tax applicable at the time of delivery and with no other discounts.
- 4.3 The goods supplied shall be packed by HEITEC in the manner common in the trade.
- 4.4 Any shipping costs shall be paid by the Customer. Transport insurance can be purchased separately at the request of and cost to the Customer.
- 4.5 The minimum order value is €50.00 net.
- 4.6 Partial deliveries by HEITEC are permitted if they are reasonable for the Customer.
- 4.7 The risk passes to the Customer on provision of the Deliveries at the place of fulfillment. This also applies to Deliveries made free to the door or if the Deliveries are shipped or picked up by the Customer.
5. Payment terms
- 5.1 Unless otherwise agreed, invoices are due and payable immediately and without deduction.
- 5.2 Customer can perform set-offs only with demands that are uncontested or have been adjudicated finally and without possibility of appeal. This does not apply where demands by the Customer on HEITEC for the cost of correcting material defects under the agreement are concerned.
6. Delivery period
- 6.1 Adherence to any agreed delivery period assumes timely receipt of the complete Documents, required approvals, release declarations to be provided by the Customer, as well as compliance with the terms of payment and other obligations on the part of the Customer. If these conditions are not satisfied in a timely manner, the delivery period shall be reasonably extended. This does not apply if HEITEC is solely responsible for the delay.
- 6.2 If the non-adherence to the agreed delivery period is due to incidents such as natural disasters, mobilization, war, acts of terrorism, virus or other attacks by third parties on HEITEC’s IT system despite compliance with the necessary protective measures, riots, strikes or lockouts, hindrances caused by German, American, or other applicable national, EU, or international foreign trade regulations, operational disruptions or interruptions, transportation difficulties, or comparable incidents for which HEITEC is not responsible (“force majeure”), the delivery period shall be appropriately extended. Should the incidents of force majeure last longer than 60 calendar days, HEITEC or the Customer shall have the right to rescind the contract partially or in toto with neither party having the right to claim damages from the other party as a result. This applies even if the above-mentioned incidents of force majeure occur at a time when HEITEC is behind schedule.
- 6.3 If HEITEC falls behind schedule, the Customer may, where they can credibly establish that they have incurred damage as a result, demand compensation equal to 0.5 percent of the net price of the portion of the Deliveries that they cannot, as a result of the delay, utilize either in a timely manner or in accordance with the contract for each complete calendar week of the delay, not to exceed a total of five percent. The requirement to pay the liquidated damages assumes that the Customer shows that they have incurred damages, but not the amount thereof. HEITEC shall be permitted to show that the Customer incurred lesser damages or none at all.
- 6.4 Any claims by the Customer for damages due to a delay in delivery or for damages in lieu of performance in excess of the limits given in 6.3 are precluded hereby, even after expiration of any deadline for delivery set by the Customer.
- 6.5 Other claims and remedies on the part of the Customer due to delay, in particular due to indirect or consequential damages, lost profit, or interruption of production, are precluded hereby. This does not apply where there is compulsory liability due to intentional misconduct, gross negligence on the part of owners, legal representatives, or executives, or culpable injury to life, limb, or health.
- 6.6 The Customer may rescind the agreement only if HEITEC is responsible for the delay in Deliveries and the Customer set a reasonable deadline for HEITEC to perform the Deliveries after the maximum level of compensation for delay has been reached, as given in 6.3, and the deadline has expired without success. This does not imply any change in the burden of proof to the disadvantage of the Customer.
- 6.7 On request, the Customer shall declare within a reasonable period whether they will rescind the agreement due to the delay in Deliveries or insist on the Deliveries.
7. Reservation of delivery by our suppliers
- If Deliveries are not available because HEITEC was not supplied by its own suppliers, or because HEITEC’s stocks for Deliveries are exhausted, HEITEC is entitled to provide Deliveries of equivalent quality and price. If this is not possible for HEITEC, HEITEC may rescind the agreement.
8. Assignment and transfer, right of retention
- 8.1 An assignment of claims or other rights arising from the contract concluded with HEITEC shall only be permitted with the written agreement of HEITEC. This shall not apply to monetary claims as set forth in HGB Section 354a.
- 8.2 The Customer may only exercise a right of retention with regard to claims from the same contractual relationship.
9. Reservation of title
- 9.1 HEITEC retains ownership of the goods supplied until complete satisfaction of the claims stated in the business arrangement with the Customer (“Reserved Goods”). The Customer may not damage, modify, remove, or disguise any seals, type plates, serial numbers, or other markings that are applied by HEITEC (e.g., CE labels, copyright notices).
- 9.2 Should the value of our security right exceed the amount of the secured claims by more than 20 percent, HEITEC will release a corresponding part of the security rights to the Reserved Goods at the Customer’s request; HEITEC is at liberty to choose between various security rights to release.
- 9.3 The reservation of title shall remain in force if individual claims by HEITEC against the Customer have been included in a current account and the balance has been drawn and acknowledged, unless the balance has been paid.
- 9.4 In the event of any violations of the Customer’s obligations, particularly delay in payment, HEITEC has the right to demand the surrender of the goods by a reasonable deadline, to rescind the agreement, and to take back the Reserved Goods; the Customer is required to surrender the Reserved Goods. The statutory provisions regarding the lack of necessity to set a deadline shall remain unaffected thereby.
- 9.5 In the event of any violations of the Customer’s obligations, particularly delay in payment, asserting the reservation of title and the associated recovery of the Reserved Goods by HEITEC does not require rescission of the agreement; neither these actions nor attachment of the Reserved Goods represents rescission of the agreement unless this was explicitly so stated by HEITEC.
- 9.6 The Customer is not permitted to pledge the Reserved Goods nor transfer them by way of security as long as the reservation of title is in effect. The Customer will promptly notify HEITEC in writing of any attachment, seizure, or other dispositions or interventions by third parties. Should the Customer violate this obligation, they are liable for damages to HEITEC. In the event of a substantiated legitimate interest, the Customer must provide HEITEC with the information necessary to assert our rights against third parties without delay and must provide the necessary documents.
- 9.7 The Customer has the right to resell the goods in the regular course of business on the condition that the Customer must either receive payment from their buyer or impose the reservation that ownership shall not transfer to the buyer until the latter has satisfied their payment obligations to the Customer.
- 9.8 If the Customer resells the Reserved Goods, they now hereby assign and transfer their future demands against their buyers from the resale to HEITEC by way of security with all ancillary rights, including any demands for the balance, with no need for any other special declarations. If the Reserved Goods are resold together with other items with no agreement on an individual price for the Reserved Goods, the Customer assigns that portion of the total price to HEITEC that is equivalent to the amount invoiced by HEITEC for the Reserved Goods. HEITEC now hereby accepts each such assignment. HEITEC’s obligation to release security as set forth in item 9.2 shall remain unaffected thereby.
- 9.9 The Customer is permitted to process the Reserved Goods or to commingle or combine them with other objects. The Customer’s processing, commingling, or combining of the goods is always performed for HEITEC. The Customer will store the new object thus created on our behalf using the care and diligence of a prudent merchant. The new object shall be regarded as Reserved Goods.
- 9.10 The Customer and HEITEC are in agreement that, after combination or commingling with other items not belonging to HEITEC, HEITEC shall in all cases have the right to co-ownership of the new item in proportion of the value of the combined or commingled Reserved Goods to the other goods at the time of the combination or commingling. The new object shall be regarded as Reserved Goods.
- 9.11 The provision in item 9.8 regarding the assignment of claims shall also apply to the new object. However, the assignment shall only apply up to the amount corresponding to the value invoiced by HEITEC for the processed, combined, or commingled Reserved Goods.
- 9.12 Until revoked, the Customer is authorized to collect assigned claims arising from the resale. Where there is good cause, in particular in the event of delay or stoppage of payments, commencement of insolvency proceedings, bill protest, or well-founded indications of overindebtedness or the threat of insolvency/inability to pay on the part of the Customer, HEITEC has the right to revoke the Customer’s authorization to collect payments. In addition, after first issuing a threat including a reasonable deadline, HEITEC has the right to disclose the security assignment, to liquidate the assigned claims, and to demand disclosure of the security assignment by the Customer to the buyer. HEITEC’s obligation to release security as set forth in item 9.2 shall remain unaffected thereby.
- 9.13 If the Customer is in arrears with payment and if this indicates a risk to the ability to realize a significant amount of HEITEC’s claim, HEITEC shall have the right to prohibit the further processing of the goods, to recover the goods, and if necessary to enter the Customer’s premises for this purpose. Recovery of the goods does not represent a rescission of the agreement.
10. Legal rights in the case of material defects
- 10.1 The goods are considered defective (“Material Defect”) if they do not exhibit the quality specifications (2.5) at the time of transfer of risk (4.7). Characteristics not listed there are not subject to our liability for Material Defects. It is essentially the Customer’s responsibility to examine the goods as to their suitability for the intended purpose.
- 10.2 Liability for Material Defects does not apply to a merely insignificant deviation from the quality specifications (2.5), to a merely insignificant impairment of usability, to natural wear or damage occurring after the transfer of risk (4.7) as a consequence of disregarding instructions for use, improper or careless handling, excessive stress, unsuitable operating materials, or as a result of particular external influences that are not provided for under the agreement. Changes in the color of plastic or component parts do not represent a Material Defect.
- 10.3 The Customer must report any Material Defect in writing without delay. The report must include the data pertaining to the Deliveries, in particular the error report with information on usage and environmental conditions and the last inputs, as well as information on identifying marks and numbers (e.g., order number, invoice number).
- 10.4 At its election, HEITEC will repair any Material Defect (10.1) free of charge within the limitation period (10.6) or will deliver a replacement to the Customer (“Subsequent Performance”). The defective goods must be provided to HEITEC on demand. Defective goods replaced through Subsequent Performance shall become the property of HEITEC. The Customer must grant HEITEC the necessary time required to carry out the Subsequent Performance. If the Customer does not grant HEITEC an opportunity for Subsequent Performance within a reasonable time, HEITEC shall be released from liability for Material Defects.
- 10.5 If Subsequent Performance is impossible or fails, the Customer may rescind the agreement or reduce the compensation without prejudice to any damage compensation claims.
- 10.6 Claims for Material Defects expire 12 months after the transfer of risk (4.7). This shall not apply where the law prescribes longer periods and in cases of injury to life, limb, or health, in case of intentional or grossly negligent violation of duties, if a defect is fraudulently concealed, and in the event of non-compliance with a quality guarantee. The legal rules concerning the suspension, interruption, and recommencement of time periods shall remain unaffected thereby.
- 10.7 The limitation period for Subsequent Performance (10.4) is six months commencing from the ending of the Subsequent Performance, in the event that the limitation period according to 10.6 expires earlier. In any case, the limitation period shall end 18 months after commencement of the limitation period given in 10.4. Mandatory legally prescribed periods, as well as longer periods in case of injury to life, limb, or health, intentional or grossly negligent violation of duties, fraudulent concealment of defects, and non-compliance with a quality guarantee, shall remain unaffected by the commencement and ending of the limitation periods.
- 10.8 Claims by the Customer for expenditures required for the purpose of Subsequent Performance, in particular transportation costs, travel costs, or labor and material costs, are precluded insofar as the expenditures increase because the delivery was later carried out at a location other than the original place of fulfillment (4.1).
- 10.9 Recourse claims by the Customer against HEITEC shall apply only insofar as the Customer has not made any agreement with their buyer that extend beyond the statutory claims for defects. Item 10.7 shall apply accordingly to the scope of the Customer’s recourse claim against HEITEC.
- 10.10 Damage compensation claims by the Customer due to a Material Defect are precluded hereby. The preclusion shall not apply in a case of fraudulent concealment of the Material Defect, non-compliance with a quality guarantee, injury to life, limb, or health, and in the event of an intentional or grossly negligent violation of duties by HEITEC. The above provisions shall not be taken to imply any change in the burden of proof to the Customer’s disadvantage. Any claims by the Customer against HEITEC due to a Material Defect that are in excess of or other than given in part 10 are precluded hereby. The Customer’s right to rescind the agreement or reduce the compensation shall remain unaffected thereby.
11. Infringements of industrial property rights; other defects of title
- 11.1 The provisions in part 10 shall apply accordingly in the event of other defects of title.
- 11.2 Damage compensation claims by the Customer in the event of a defect of title are precluded hereby. The preclusion shall not apply in a case of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb, or health, and in a case of an intentional or grossly negligent violation of duties by HEITEC. The above provision shall not be taken to imply any change in the burden of proof to the Customer’s disadvantage. Any claims by the Customer due to a defect of title that are in excess of or other than given in part 11 are precluded hereby.
- 11.3 HEITEC performs deliveries domestically free of industrial property rights (e.g., patents, utility models, design patents) and copyrights of third parties (“industrial property rights”). Where a third party raises justified claims against Customers of HEITEC as a result of violation of industrial property rights caused by the goods delivered by HEITEC and used by the Customer in accordance with the contract, HEITEC shall be liable as follows within the period specified in item 10.7:
- 11.3.1 At its election and expense, HEITEC shall obtain a right of use for the goods in question, modify them in such a way that the industrial property right is not violated, or replace them. If this procedure is not possible under reasonable conditions, the Customer shall have the statutory rights of rescission or price reduction. The rules in items 10.5 and 10.10 shall apply accordingly.
- 11.3.2 A condition for fulfillment of the obligations stated above is that the Customer must promptly notify HEITEC in writing of the claims asserted by the third party, they must not acknowledge any violation, and that defensive measures and settlement negotiations must be left up to HEITEC. If the Customer discontinues use of the goods for price reduction or other good cause, they will inform the third party that the suspension of use does not imply acknowledgment of any violation of industrial property rights.
- 11.4 Claims by the Customer against HEITEC are precluded where the Customer is responsible for the violation of industrial property rights.
- 11.5 Furthermore, claims by the Customer against HEITEC are precluded if the violation of industrial property rights is caused by special requirements stipulated by the Customer, an application not foreseeable by HEITEC, or because the goods were modified by the Customer or used together with goods not supplied by HEITEC.
12. Other claims for damages
- 12.1 Unless expressly provided for otherwise, claims by the Customer for damages and reimbursement of expenses are precluded hereby, regardless of the cause in law, particularly due to violation of duties under contractual obligations and from tort.
- 12.2 HEITEC provides technical application advice and other advice to the best of its knowledge. No liability for damages to the Customer is established thereby. In particular, the Customer is not thereby released from their duty to examine the goods for their intended use on their own responsibility. This applies even if HEITEC is aware of the Customer’s intended use.
- 12.3 Items 12.1 and 12.2 do not apply where there is compulsory liability according to the German Product Liability Law, in the event of intentional misconduct, gross negligence on the part of owners, legal representatives or executives, fraudulent intent, non-compliance with an assumed guarantee, culpable injury to life, limb, and health, or a culpable violation of essential contractual obligations.
- 12.4 Any claim for damages for violating essential contractual obligations shall be limited to those damages that are foreseeable and typical for the contract, unless there is an incident as set forth in item 12.3.
- 12.5 Where HEITEC’s liability according to part 12 is limited or precluded, this also applies to the personal liability of our staff, workers, employees, and other agents but not the personal liability of legal representatives and executives.
- 12.6 This does not imply any change in the burden of proof to the disadvantage of the Customer.
13. Impossibility; adjustment of the agreement
- 13.1 Where delivery is impossible for HEITEC, the Customer is entitled to demand damages unless HEITEC is not responsible for the impossibility. The Customer’s claim for damages is limited to 10 percent of the net value of that portion of the goods that cannot be used by the Customer in accordance with the agreement as a result of the impossibility. This does not apply where HEITEC is liable due to intentional misconduct, gross negligence, or injury to life, limb, or health. This does not imply any change in the burden of proof to the disadvantage of the Customer. The Customer’s right to rescind the agreement or reduce the price shall remain unaffected thereby.
- 13.2 The agreement must be reasonably adjusted observing the principle of loyalty and good faith where incidents of force majeure (6.2) substantially change the commercial importance or the content of the goods or have a substantial effect on HEITEC’s business. Where this is not economically justifiable, HEITEC has the right to rescind the agreement. Upon recognizing the consequences of the incident, HEITEC will inform the Customer without delay that it is exercising the rescission, even if an extension to the delivery time was initially agreed with the Customer.
- Each contracting party shall use the information, knowledge, documents, including all CAD files, design documents, outlines, illustrations, plans, diagrams, calculations, etc. (“information”) that they receive from the other contracting party only for the purposes of the agreement, they shall treat these in a confidential manner, and they shall not make them available to any third party without the express written agreement of the other contracting party. This shall not apply to information that at the time of its receipt was public knowledge or that was known to the receiving contracting party at the time of its receipt without it being obliged to confidentiality or that was transmitted by a third party authorized to share such information or that was developed by the receiving contracting party without exploiting any confidential information of the other contracting party. If a contract is not finalized, the information received must be returned without delay. The receiving contracting party shall not have any right of retention.
15. Corporate social responsibility
- Both the customer and HEITEC pledge and undertake to comply with the laws of the applicable legal system, to not tolerate any form of corruption or bribery, to respect both the fundamental rights of employees and the prohibition against child and forced labor. Both parties shall also take responsibility for the health and safety of their employees in the workplace, ensure fair remuneration and working hours, respect laws on environmental protection, and use their best efforts to promote and demand compliance with these principles among their suppliers.
16. Applicable law
- The agreement is governed by and shall be construed in accordance with German substantive law. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods shall not apply.
17. Jurisdiction and venue
In the event of disputes, the courts of Nuremberg, Germany, shall have exclusive jurisdiction and venue.
You can download the current GTSD (PDF) here .