General Terms and Conditions

I. Validity of the General Terms and Conditions of Sale

These General Terms and Conditions of Sale apply to the current and all subsequent contracts with the customers of Hohnen & Co. KG hereinafter referred to as Hohnen , which are concluded from 15 June 2015 onwards and mainly concern the delivery of goods to the customer. Any additional obligations assumed by Hohnen shall not affect the validity of these General Terms and Conditions of Sale.

Hohnen shall not be bound by any terms and conditions of the customer that deviate from the General Terms and Conditions of Sale or statutory provisions, even if Hohnen does not object to them or provides services or accepts services from the customer without reservation.

These General Terms and Conditions of Sale are designed for contracts that do not fall under the special provisions of the sale of consumer goods (§§ 474 ff. BGB). Should this assumption not apply, the customer shall inform Hohnen immediately and in writing in each individual case prior to the conclusion of the contract; in all other cases, Hohnen's ‘General Terms and Conditions of Sale for Consumer Goods Sales’, which will be sent on request, shall apply instead of these General Terms and Conditions of Sale.

These General Terms and Conditions of Sale shall not apply if the customer is a consumer within the meaning of § 13 BGB (German Civil Code).

II. Conclusion of the contract

The customer is obliged to inform Hohnen in writing before the conclusion of the contract if
- the goods to be delivered are not intended to be suitable exclusively for normal use or the customer assumes a certain suitability for use or bases his expectations of quality on public statements,
- the goods are used under unusual conditions or conditions that pose a particular health, safety or environmental risk or require increased strain,
- the contract involves atypical possibilities of damage or unusual circumstances, in particular those described in clause VII. -1 .-e), which are known or should have been known to the customer or
- the goods are to be used outside Germany or delivered to customers of the customer located outside Germany.

Orders of the customer must be made in writing. If the customer's order deviates from Hohnen's proposals or offer, the customer shall emphasise the deviations as such. The rules for the conclusion of contracts in electronic business transactions in accordance with § 312 i paragraph 1 sentence 1 no. 1 to 3 BGB do not apply.

All orders, in particular those placed by Hohnen employees, shall only become effective upon written order confirmation by Hohnen. The actual delivery of the ordered goods, other behaviour on the part of Hohnen or silence on the part of Hohnen shall not justify the customer's trust in the conclusion of the contract. Hohnen may issue the written order confirmation up to the expiry of fourteen (14) calendar days after Hohnen has received the customer's order.

Hohnen's written order confirmation shall be deemed to have been received in good time if it is received by the customer within seven (7) calendar days of its date of issue. The customer shall inform Hohnen immediately in writing if the written order confirmation is received late.

Hohnen's written order confirmation shall be decisive for the scope of the contents of the contract and shall bring about the conclusion of the contract even if, apart from the type of goods, price and delivery quantity, it deviates from the customer's declarations in any other way, in particular also with regard to the exclusive validity of these General Terms and Conditions of Sale. The contract shall only fail to come into existence if the customer objects in writing that Hohnen's order confirmation does not correspond in every respect to the customer's declarations, specifies the deviations in writing and the objection is received by Hohnen within a short time, at the latest seven (7) calendar days, after the written order confirmation has been received by the customer.

Special requests of the customer, namely special usage and quality expectations of the customer, guarantees or other assurances with regard to the goods or the performance of the contract as well as performance declarations, instructions for use or safety information requested by the customer in electronic or printed form therefore require express written confirmation by Hohnen in any case.

Confirmations of the contract made by the customer shall remain without effect, without any objection by Hohnen being required. In particular, neither the actual delivery of the ordered goods, any other behaviour on the part of Hohnen or silence on the part of Hohnen shall justify the customer's trust in the relevance of its confirmation.

Hohnen's employees, commercial agents and other sales intermediaries are not authorised to dispense with the requirement for written order confirmation by Hohnen or to make promises that deviate in terms of content or to declare guarantees. Amendments to the concluded contract always require written confirmation from Hohnen.

III Obligations of Hohnen

Hohnen shall deliver the goods specified in the written order confirmation and transfer ownership. If the goods to be delivered require further specification, Hohnen shall carry out the specification taking into account its own interests and those of the customer which are recognisable and justified for Hohnen. Hohnen is not obliged to provide services that are not listed in Hohnen's written order confirmation or in these General Terms and Conditions of Sale; in particular, Hohnen is not obliged under the contract to provide documents or information not expressly agreed in writing or to supply accessories, to provide processing or assembly instructions, to carry out assembly work or to advise the customer.

Hohnen is solely obliged to the customer under the contract concluded with the customer. Third parties not involved in the conclusion of the contract, in particular customers of the customer, are not authorised to demand delivery to themselves or to assert other claims of a contractual nature against Hohnen. The customer's responsibility for receipt shall remain in force even if it assigns claims to third parties. The customer shall indemnify Hohnen without restriction against all claims asserted against Hohnen by third parties arising from the contract concluded with the customer.

Hohnen is obliged to deliver goods of average type and quality, taking into account the provisions in sections II.1. and II.5. as well as customary tolerances with regard to type, quantity and quality. The right to deviations due to the nature of the materials used is reserved. Hohnen is entitled to deliver smaller or excess quantities in deviation from the agreed quantity, in particular if the packaging units suggest quantity deviations. Hohnen is authorised to make partial deliveries and to invoice them separately.

Hohnen shall make the goods available for collection by the customer at the agreed delivery time EXW (Incoterms 2010) at the delivery address specified in the written order confirmation and - if no such address is specified - at the branch office in 33604 Bielefeld in the packaging customary at Hohnen. Hohnen is not obliged to separate or label the goods in advance or to notify the customer of the availability of the goods. Hohnen is not obliged - even if other clauses of the Incoterms are used - to inform the customer of the delivery, to inspect the goods on the occasion of delivery for their conformity with the contract, to provide the customer with information on the acceptance of the goods, to check the operational safety of the means of transport or the safe loading of the goods for transport, to organise the transport of the goods or to insure the goods. The agreement of other clauses of the Incoterms or of clauses such as ‘delivery free...’ or of a similar nature shall only result in a deviating regulation of the transport and the transport costs; in all other respects, the regulations made in these General Terms and Conditions of Sale shall remain in force.

Agreed delivery periods or delivery dates are subject to the customer providing any documents, authorisations or approvals to be obtained in good time, making advance payments as agreed and fulfilling all other obligations incumbent upon him in good time. Otherwise, agreed delivery periods shall commence on the date of Hohnen's written order confirmation. Hohnen is entitled to deliver before the agreed time or to determine the time of delivery within the agreed delivery period.

Hohnen is entitled to fulfil contractual obligations after the agreed date if the customer is informed of the missed deadline and is given a period for subsequent fulfilment. Under these conditions, Hohnen is also entitled to make several attempts at subsequent fulfilment. The customer may object to the announced subsequent fulfilment within a reasonable period if the subsequent fulfilment is unreasonable. Hohnen shall reimburse the customer's demonstrably necessary additional expenses incurred as a result of exceeding the deadline, insofar as Hohnen is liable for damages in accordance with the provisions in Section VII.

Irrespective of whether the goods are transported by Hohnen, by the Customer or by a third party, the risk shall pass to the Customer as soon as the goods have been made available to the Customer in accordance with the provisions of Section III.-4., even if the goods are not clearly labelled. The loading of the goods is one of the customer's obligations. The agreement of other clauses of the Incoterms or of clauses such as ‘delivery free...’ or of a similar nature shall only result in a deviating regulation of the transport and the transport costs; in all other respects, the provisions made in these General Terms and Conditions of Sale shall remain in force.

Hohnen shall not be obliged to provide any certificates or attestations not expressly agreed or to obtain any other documents and shall in no case be responsible for the fulfilment of the obligations associated with the placing of the goods on the market outside Germany.

Without waiving any further statutory rights, Hohnen shall be entitled to raise the defence of uncertainty in accordance with Section 321 BGB as long as Hohnen is concerned that the customer will not fulfil its obligations in whole or in part in accordance with the contract. In particular, Hohnen is entitled to raise the defence of uncertainty if the customer does not adequately fulfil its obligations towards Hohnen or third parties or is slow to pay or if the limit set by a credit insurer has been exceeded or will be exceeded with the upcoming delivery. Instead of the defence, Hohnen may make future deliveries, including those already confirmed, dependent on the customer making advance payment. Hohnen is not obliged to continue the services as long as and to the extent that services provided by the customer to avert the defence do not provide adequate security or could be contestable.

IV. Obligations of the customer

Notwithstanding any further obligations of the customer to secure or prepare payment, the purchase price shall be due for payment on the date specified in the written order confirmation and - if no such date is specified - upon issue of the invoice and shall be paid by the customer. Any payment terms granted shall lapse and outstanding receivables shall become due for payment immediately if:
- Customer's customers pay for goods delivered by Hohnen which are subject to retention of title (clause VIII.-5 . )
- an application is made to open insolvency proceedings against the customer's assets
- the customer fails to fulfil material obligations due to Hohnen or third parties without providing a justifiable reason, does not fulfil
- the customer has provided inaccurate information about his creditworthiness
- the cover promised by a credit insurer is reduced for reasons for which Hohnen is not responsible

The agreed purchase price covers the services incumbent on Hohnen excluding packaging. The statutory value added tax shall be charged separately and must be paid additionally by the customer.

Discount commitments shall be agreed individually with the customer in each individual case or stated in Hohnen's written order confirmation and shall only apply on condition that all claims of Hohnen against the customer are paid on time and in full.

Payments shall be made in EURO without deduction and free of charges and costs via one of the banking institutions designated by Hohnen. The unconditional credit entry in the bank account is decisive for the timeliness of the payment. Hohnen's employees, commercial agents or other sales intermediaries are not authorised to accept payments.

Hohnen may offset incoming payments at its own discretion against claims existing against the customer by virtue of its own or assigned rights at the time of payment, irrespective of court jurisdiction.

The customer's statutory rights to offset against Hohnen's claims are excluded, unless the counterclaim is due and has either been legally established or is undisputed or is based on the same contractual relationship. § Section 215 BGB shall not apply.

Legal rights of the customer to withhold payment or acceptance of the goods are excluded, unless the customer's right of retention is based on the same contractual relationship. However, the right of retention is not excluded if and to the extent that the claims on which the assertion of the right of retention is based are undisputed or have been recognised by declaratory judgement. § Section 215 BGB shall not apply.

The customer shall be obliged to accept the goods on the delivery date without claiming additional periods and at the relevant delivery address in accordance with Clause III.-4. and to fulfil all obligations incumbent on him under the contract, these General Terms and Conditions of Sale, the rules of the ICC for the interpretation of the agreed clause of Incoterms® 2010 and statutory provisions. The customer shall only be entitled to refuse acceptance of the goods if he withdraws from the contract in accordance with the provisions of clause VI.-1.

Insofar as this is not otherwise ensured, the customer shall, irrespective of statutory provisions, reuse, recycle or otherwise dispose of the goods delivered by Hohnen to the customer and the packaging at his own expense. Hohnen is not obliged to take back goods or packaging delivered to the customer from the customer or from third parties due to waste law provisions.

The customer shall not enter into or carry out any transactions in relation to the goods purchased from Hohnen which are prohibited under the relevant provisions, in particular under foreign trade law, including US export control law. If the customer is not certain that such a prohibition does not exist, the customer shall seek written agreement with Hohnen.

V. Defective goods

Without waiving any statutory exclusions or limitations of the Seller's liability, the goods shall be deemed to be defective if the Customer proves that the goods, taking into account the provisions in sections II.1., II.5. or III. at the time of the transfer of risk, noticeably deviate from the type, quantity, quality or suitability for use agreed in the written order confirmation or, in the absence of an express agreement, noticeably deviate from the quality customary in Germany or are obviously not suitable for the use customary in Germany. Concealed short deliveries are deliveries with material defects. Model, design or material changes that correspond to more recent technical findings shall not constitute a material defect.

Without waiving statutory exclusions or limitations of the Seller's responsibility, the goods shall be defective in title if the Customer proves that the goods are not free from rights or claims of third parties enforceable in Germany at the time of the transfer of risk. Without waiving any further legal requirements, rights or claims of third parties based on industrial or other intellectual property shall only constitute a defect of title if the rights are registered, published and final in Germany and exclude the contractual use of the goods in Germany.

Unless Hohnen's written order confirmation expressly states otherwise, Hohnen is in particular not responsible for ensuring that the goods are suitable for any use other than their normal use, that they fulfil any further expectations of the customer which deviate from the usual quality or that they are free from rights or claims of third parties outside Germany. Furthermore, Hohnen is not responsible for the results of processing the goods with other materials; rather, the customer is obliged to obtain certainty about the suitability of the goods for processing with certain materials or for processing using certain techniques before commencing processing. Hohnen is not liable for defects that occur after the time of transfer of risk. If the customer undertakes attempts to rectify defects himself or through third parties without the consent of Hohnen, Hohnen shall be released from its warranty obligations unless these are carried out properly.

Guarantees or assurances requested by the customer must always be specifically identified as such in the written order confirmation, even in the case of follow-up transactions. In particular, keyword-like designations, reference to generally recognised standards, the use of trademarks or quality marks or the submission of samples or specimens shall not in themselves constitute the assumption of a guarantee or warranty. Hohnen's employees, commercial agents or other sales intermediaries are not authorised to declare guarantees or assurances or to provide information on special usability or the economic efficiency of the goods.

The Customer is obliged vis-à-vis Hohnen to inspect each individual delivery immediately and in every respect upon acceptance, irrespective of any redirection or onward shipment, for recognisable and typical deviations of a qualitative, quantitative and other nature, for compliance with the product law regulations applicable to the goods and otherwise in accordance with the statutory provisions.

Without waiving the customer's statutory obligation to notify Hohnen immediately, the customer is obliged to notify Hohnen of any material defects or defects of title in new goods within one (1) year at the latest and in used goods within six (6) months at the latest after the goods have actually been handed over to the customer. The notification must be made in writing and sent directly to Hohnen and must be worded precisely so that Hohnen can take remedial action and secure recourse claims against upstream suppliers without further enquiry to the customer, and must otherwise comply with the statutory provisions. Hohnen's employees, sales representatives or other sales agents are not authorised to accept notifications of defects or make warranty statements outside Hohnen's business premises.

After proper notification in accordance with Section V.-6., the customer may assert the legal remedies provided for in these General Terms and Conditions of Sale. Unless otherwise agreed in writing by Hohnen, the customer shall have no further claims or non-contractual claims arising from a breach of the obligation to deliver goods free of defects. In the event of improper notification, the customer may only assert legal remedies if Hohnen has intentionally concealed the defect. Statements made by Hohnen regarding defects serve only to provide factual clarification and do not, in particular, constitute a waiver of the requirement for proper notification.

The customer shall have no legal remedies for the delivery of defective goods if he is responsible for the quality or suitability for use of the goods that are not the subject of the agreements made with Hohnen, or if the customer would not be responsible for the delivery of defective goods in his business relations with his customers under the applicable statutory provisions.

Insofar as the customer is entitled to legal remedies for the delivery of defective goods in accordance with the provisions of these General Terms and Conditions of Sale, he shall be entitled to demand subsequent performance from Hohnen within a reasonable period of time after notification of a defect in accordance with the statutory provisions. The place of performance for subsequent performance is the delivery address specified in Section III.-4. Hohnen shall bear the expenses necessary for subsequent performance, provided that these are not increased by the use of the goods outside Germany. However, once the customer becomes aware of or should have become aware of the defect, they are obliged to take all reasonable measures to minimise the expenses required for subsequent performance. The assumption of the expenses required for subsequent performance also presupposes that Hohnen is liable for damages in accordance with the provisions of Section VII. In the event that subsequent performance ultimately fails, is not possible or is not carried out within a reasonable period of time, the customer shall be entitled, notwithstanding other legal remedies provided for in these General Terms and Conditions of Sale, to reduce the price in accordance with the statutory provisions or, after setting a deadline and threatening to refuse acceptance, to withdraw from the contract within a preclusive period of four weeks after the expiry of the deadline. Notwithstanding the customer's legal remedies, Hohnen is always entitled to repair defective goods or provide replacement goods in accordance with the provisions of Section III.6.

Subject to normal use of the delivered goods for a building and the causing of a building defect, any claims by the customer due to the delivery of defective goods shall become time-barred one (1) year after the start of the statutory limitation period and, in the case of used goods, six (6) months after the start of the statutory limitation period. Claims due to fraudulent, intentional or grossly negligent breach of contract as well as claims due to injury to life, limb or health remain unaffected. Replacement delivery or repair does not result in new limitation periods.

VI. Withdrawal

In addition to the provision in Section V. 9., the customer is entitled to withdraw from the contract in accordance with the relevant statutory provisions if the services to be provided by Hohnen have become impossible, Hohnen is in default with the fulfilment of its main contractual obligations or has otherwise materially breached its obligations under this contract and Hohnen is responsible for the default or breach of duty in accordance with Section VII.1.c). In order to bring about the default, without waiving further legal requirements, a separate written request must always be sent to Hohnen immediately after the due date, even in the case of a performance period determined by the calendar, requesting that the performance be carried out within a reasonable period of time. The customer must declare its withdrawal from the contract in writing and directly to Hohnen within a reasonable period of time after the occurrence of the event justifying withdrawal.

Without waiving any further legal rights, Hohnen shall be entitled to withdraw from the contract without replacement if the execution of the contract is or becomes prohibited by law, if the customer objects to the validity of these General Terms and Conditions of Sale, if the special provisions of the Sale of Consumer Goods (Sections 474 et seq. of the German Civil Code (BGB)) apply, if Hohnen's written order confirmation is received by the customer later than fourteen (14) calendar days after its date of issue, if insolvency proceedings are initiated against the customer's assets, if the customer fails to fulfil essential obligations towards Hohnen or third parties without providing a justifiable reason , if the customer provides inaccurate information about their creditworthiness, if the cover promised by a credit insurer is reduced for reasons beyond Hohnen's control, if Hohnen itself is not supplied correctly or on time through no fault of its own, or if Hohnen is no longer able to fulfil its performance obligations for other reasons with means that are reasonable, taking into account its own legitimate interests and those of the customer that were recognisable at the time the contract was concluded, and in particular the agreed consideration.

VII. Compensation for damages

Except liability
- under the Product Liability Act,
- due to fraudulent concealment of a defect,
- due to the assumption of a guarantee for the quality of an item or
- for damages resulting from culpable injury to life, limb or health
Hohnen shall be liable for damages due to breach of obligations arising from the contract concluded with the customer and/or the contract negotiations conducted with the customer, without waiving the legal requirements, only in accordance with the following provisions. The following provisions shall also apply in the event of a breach of warranty obligations and in the event of default:
1. Compensation for damages due to the delivery of defective goods is excluded if the defect is not significant.
2. The customer is primarily obliged to accept offers of subsequent performance in accordance with the provisions in Section III.-6. or to exercise the legal remedies provided for in Sections V. and VI. and may only claim damages for remaining disadvantages, but in no case in lieu of other legal remedies.
3. Without waiving any statutory exclusions or limitations of liability, Hohnen shall only be liable in the event of culpable breach of material contractual obligations towards the customer or in the event of intentional or grossly negligent breach of other contractual obligations towards the customer.
4. In the event of liability, Hohnen shall compensate the customer for the proven damage, taking into account the limits specified in letter e), to the extent that it was foreseeable for Hohnen at the time of conclusion of the contract as a result of the breach of duty and was unavoidable for the customer in terms of the occurrence and amount of damage.
5. In the event of liability on the part of Hohnen, the amount of compensation for delay shall be limited to 0.5% for each full week of delay, up to a maximum of 5%, and for other breaches of duty to 200% of the value of the part of the service not performed in accordance with the contract. This paragraph shall not apply in the event of gross negligence on the part of Hohnen or its vicarious agents.
6. The customer may only claim damages in lieu of the entire performance, regardless of compliance with the statutory provisions and the provisions set out in these General Terms and Conditions of Sale, after he has requested Hohnen in writing to perform the service within a reasonable period of time and, in the event of non-performance, has demanded compensation in lieu of the entire service within a reasonable period of time after the occurrence of the circumstances justifying compensation in lieu of the entire service, in writing and directly from Hohnen.
7. Hohnen shall be liable for damages exclusively in accordance with the provisions of these General Terms and Conditions of Sale for breach of its contractual and/or pre-contractual obligations towards the customer. Any recourse to competing bases for claims, in particular of a non-contractual nature, is excluded. Similarly, it is excluded to hold the organs, employees, workers, staff, representatives and/or vicarious agents of Hohnen personally liable for the breach of contractual obligations incumbent on Hohnen.
8. Unless Hohnen is liable for intent or the customer's claim has expired, a limitation period of 6 months applies to the filing of claims for damages, beginning with Hohnen's refusal to pay damages.
9. The above provisions regarding Hohnen's liability also apply to claims by the customer for reimbursement of expenses.

Notwithstanding any further legal or contractual claims by Hohnen, the customer shall be obliged to pay Hohnen the following damages:
1. In the event of late payment, the customer shall pay the reasonable costs of judicial and extrajudicial legal proceedings, but at least a flat rate of €40.00 plus interest at a rate of 9 percentage points above the base rate of the Deutsche Bundesbank.
2. Subject to the customer proving that no damage or only significantly less damage has been incurred, Hohnen shall be entitled, in the event of default in acceptance or agreed but non-delivery of the goods by the customer after the expiry of a reasonable grace period set by Hohnen without notice, to demand lump-sum compensation amounting to 15% of the respective delivery value without providing evidence.

The customer is obliged to limit its liability for damages in its business relationships with its customers in terms of the grounds and amount to the extent legally possible and customary in the industry.
Section 348 of the German Commercial Code (HGB) (contractual penalty) does not apply.

VIII. Retention of title

Delivered goods remain the property of Hohnen until all claims, regardless of their legal basis, including principal and ancillary claims by Hohnen against the customer that will become due in the future, have been settled in full. In the case of current accounts, the retention of title applies to the respective balance.

During the period of retention of title, the customer shall grant Hohnen employees access to the goods subject to retention of title at any time during normal business hours. The customer is obliged to insure the goods subject to retention of title against theft, damage and destruction and, at Hohnen's request, to store the goods separately at its own expense or to demarcate them appropriately, to mark them clearly as the property of Hohnen and to take all measures necessary to comprehensively secure the retention of title. The customer hereby assigns to Hohnen, by way of security, in full and irrevocably, any claims arising against the insurance companies; Hohnen accepts the assignment.

During the period of retention of title, the customer shall immediately notify Hohnen in writing if a third party asserts claims or rights to the goods subject to retention of title or to the claims assigned to Hohnen in accordance with the provisions on retention of title, and shall support Hohnen in pursuing its interests free of charge. If a third party acquires rights to the goods subject to retention of title during the existence of the retention of title, the customer's claims against the third party, together with all rights, are hereby irrevocably assigned to Hohnen as security; Hohnen accepts the assignment.

The customer may sell the goods subject to retention of title in the ordinary course of business and only on condition that he is not in default of payment and that the payment from the purchaser to the customer is not due before the date on which the customer has to pay the price to Hohnen. The customer is not entitled to make other dispositions (e.g. transfer by way of security, pledging, etc.). The customer hereby assigns to Hohnen by way of security, in full and irrevocably, all claims against its buyers arising from the sale of the goods subject to retention of title, together with all ancillary rights. If the customer includes the claims from a sale in a current account relationship with its customers, it hereby assigns the current account claims resulting from the balancing to Hohnen as security, in full and irrevocably. Hohnen accepts the assignments.

The customer remains authorised to collect claims assigned to Hohnen on a fiduciary basis for Hohnen as long as he is not in default of payment. The customer is not entitled to assign the claims to third parties. The customer must keep incoming payments separate and forward them to Hohnen immediately, regardless of any further payment terms granted by Hohnen, until the secured claims of Hohnen have been settled in full. If payment is made by transfer to the customer's bank, the customer hereby irrevocably assigns to Hohnen the claims to which he is entitled against his bank. If the customer receives bills of exchange to settle claims against third parties, he hereby irrevocably assigns to Hohnen the claims to which he is entitled against the bank in the event of discounting the bill of exchange. Hohnen accepts the assignments.

The processing and treatment of the goods is carried out for Hohnen as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without any liabilities arising for Hohnen as a result. If the goods delivered by Hohnen are mixed, blended or combined with other items in such a way that Hohnen's ownership expires by operation of law, the customer hereby transfers its ownership or co-ownership rights to the new item to Hohnen and shall store it free of charge and in trust for Hohnen.

If necessary, the customer shall enquire to what extent the goods are still subject to retention of title. Hohnen is not obliged to quantify the extent of the retention of title upon payment without being asked to do so. If goods subject to retention of title that have not yet been paid for in full are in the customer's custody, Hohnen shall release the goods at the customer's request, provided that the invoice value of the goods exceeds the sum of the outstanding claims by more than 20% and there are no rights of separation in favour of Hohnen in respect of the goods. The same shall apply if claims against third parties have replaced the goods subject to retention of title and these are asserted by Hohnen in its own name. Furthermore, Hohnen shall release securities at the customer's request if the market price of the securities exceeds the sum of the secured claims by more than 50% plus the value added tax incurred during realisation.

If goods that have not yet been paid for in full and are subject to retention of title are in the customer's custody and insolvency proceedings are initiated against the customer's assets, or if the customer fails to meet its obligations to Hohnen or third parties without providing a valid reason, Hohnen may withdraw the customer's right of possession and demand the return of the goods without withdrawing from the contract. Hohnen is not entitled to demand the return of the goods if the insolvency administrator decides to fulfil the contract and the price has been paid.

In the event of withdrawal from the contract, in particular due to default of payment by the customer, Hohnen shall be entitled to sell the goods on the open market and to satisfy its claims from the proceeds.

Notwithstanding any other rights to which Hohnen may be entitled, the customer is obliged to reimburse Hohnen for the costs incurred in concluding the contract, processing the contract to date and terminating the contract, as well as the costs of retrieving the goods.

IX. Other regulations

Neither a handwritten signature nor an electronic signature is required to comply with the written form requirement. Communications by fax or email satisfy the written form requirement, as do other forms of text, without the conclusion of the declaration having to be specifically indicated.

The data received about the customer in connection with the business relationship will be processed by Hohnen in accordance with the Federal Data Protection Act.

The customer shall immediately inform Hohnen in writing if authorities become involved or take action in further connection with the goods. The customer shall also continue to monitor the delivered goods on the market and immediately inform Hohnen in writing if there is any concern that the goods could pose a risk to third parties.

Without waiving any further claims, the customer shall indemnify Hohnen without limitation against all claims by third parties asserted against Hohnen on the basis of product liability or similar provisions, insofar as the liability is based on circumstances which – such as the presentation of the product by the customer or other third parties controlled by the customer – without the express written consent of Hohnen. The indemnification shall also include, in particular, reimbursement of expenses incurred by Hohnen and shall be granted by the customer without further conditions or other objections, in particular without waiving compliance with monitoring and recall obligations and without raising the objection of limitation.

Hohnen reserves all property rights, copyrights, other industrial property rights and rights arising from know-how in relation to illustrations, drawings, calculations and other documents provided by Hohnen in physical or electronic form, as well as in relation to software. These must be kept confidential from third parties and may only be used for the purpose of executing the respective order.

Notwithstanding further legal provisions, the suspension of the limitation period shall also end if the suspending negotiations are not continued for more than four weeks. A new start of the limitation period for claims by the customer requires in any case an express written confirmation from Hohnen.

X. General contractual basis

The place of delivery is determined by the provisions in III.-4. of these General Terms and Conditions of Sale. The place of payment and performance for all other obligations arising from the legal relationship between Hohnen and the customer is 33604 Bielefeld. These provisions also apply if Hohnen performs services for the customer at another location or if services rendered are to be reversed. The agreement of other Incoterms clauses or clauses such as ‘free delivery’ or similar clauses shall only result in a deviating provision regarding transport and transport costs; otherwise, the provisions set out in these General Terms and Conditions of Sale shall remain in force.

German law and the customs applicable in Germany shall apply exclusively to contractual and non-contractual legal relationships with the customer. In case of doubt, the Incoterms® 2010 of the International Chamber of Commerce shall apply when using trade clauses, taking into account the provisions set out in these General Terms and Conditions of Sale. Deviations from these contractual principles shall arise exclusively on the basis of individual agreements made between Hohnen and the customer and these General Terms and Conditions of Sale.

All contractual and non-contractual disputes arising from or in connection with contracts to which these General Terms and Conditions of Sale apply – including their validity, invalidity, breach or termination, as well as insolvency disputes – shall be finally settled in accordance with the version of the Rules of Arbitration of the German Institution of Arbitration e.V. (DIS) in force at the time of filing the notice of commencement, to the exclusion of ordinary legal proceedings.
The arbitral tribunal shall consist of three arbitrators and, in the case of disputes with a value of less than €150,000, of one arbitrator. The place of arbitration shall be Cologne, and the language shall be German. The jurisdiction of the arbitral tribunal shall exclude, in particular, any statutory jurisdiction provided for on the basis of a personal or factual connection.
If this arbitration agreement is invalid or should become invalid, the local and international exclusive jurisdiction of the courts competent for 33604 Bielefeld shall be agreed upon instead for the decision of all disputes. However, Hohnen shall be entitled, instead of bringing an action before the arbitral tribunal and irrespective of the validity of the arbitration agreement, to bring an action before the court competent for 33604 Bielefeld, before the courts at the customer's place of business or before other competent state courts.

Should any provisions of these General Terms and Conditions of Sale be or become invalid in whole or in part, the remaining provisions shall remain valid. The parties are obliged to replace the invalid provision with a legally valid provision that comes as close as possible to the economic meaning and purpose of the invalid provision.

DATA PROTECTION INFORMATION

Download PDF - Data protection information for customers