Terms of delivery, service and payment

of F. Hesterberg & Söhne GmbH & Co KG – Feldbachacker 4 – 44149 Dortmund

§ 1 Validity of the terms of delivery, service and payment

1. the following terms and conditions of delivery, service and payment apply to all deliveries and services of HESTERBERG. all legal relationships between HESTERBERG and the CUSTOMER, including future ones, are governed by the terms and conditions of sale of HESTERBERG in the respective valid form. These conditions apply exclusively. Deviating or conflicting conditions shall not be recognized by us unless we have expressly agreed to them in writing.

2. the following terms and conditions of delivery, service and payment shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

§ 2 Conclusion of the contract / offers

1. orders and delivery contracts as well as any guarantee declarations require written confirmation by HESTERBERG. This written form requirement itself can only be waived on the basis of a written agreement.

2 Offers from HESTERBERG are subject to change and non-binding, unless they are expressly marked as binding.

§ 3 Prices, payments, small quantities, samples

1. deliveries and services shall be provided in accordance with the prices and conditions of the written order confirmation. The prices stated therein are binding.

2 The prices are ex HESTERBERG’s registered office and warehouse, plus the value added tax applicable at the time of invoicing.

3. delivery and return delivery shall in any case be at the expense and risk of the CUSTOMER; this shall also apply if HESTERBERG assumes the transportation costs or transportation.

4. an appropriate flat-rate price shall apply for the processing or delivery of samples or small quantities.

5 Unless otherwise agreed in writing, all invoices are payable immediately and without deduction. Discount agreements require our prior written confirmation.

6. the CUSTOMER shall only be entitled to set-off insofar as its counterclaims are undisputed or have been legally established. The CUSTOMER shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.

§ 4 Delivery period

1. deadlines and dates for deliveries and services promised by HESTERBERG are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. Insofar as shipment has been agreed, delivery periods and delivery dates refer, unless expressly stated otherwise by HESTERBERG, to the time of handover to the forwarding agent, carrier or other third party commissioned with the transportation.

2. without prejudice to its rights arising from default on the part of the CUSTOMER, HESTERBERG may demand from the CUSTOMER an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the CUSTOMER does not fulfill its contractual obligations to HESTERBERG.

3. the delivery deadline shall be deemed to have been met if the delivery item has left the factory or readiness for dispatch has been notified by the time it expires.

4. the delivery period shall be extended appropriately in the event of measures within the framework of labor disputes, in particular strikes and lockouts, as well as in the event of unforeseen obstacles that are beyond the control of HESTERBERG, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This also applies if the circumstances occur with subcontractors. HESTERBERG is not liable for the non-delivery, incorrect or untimely delivery by suppliers despite a congruent covering transaction concluded by HESTERBERG. HESTERBERG is also not responsible for the aforementioned circumstances if they arise during an already existing delay. In important cases, HESTERBERG shall inform the CUSTOMER of the beginning and end of such obstacles as soon as possible. In the case of delivery delays of less than two months, compensation for delay is excluded. In addition, or if the compensation must be paid, Clauses 4.5 to 4.7 shall apply.

5. if the CUSTOMER suffers damage due to a delay which has arisen as a result of HESTERBERG’s own fault, it shall be entitled to demand compensation for delay to the exclusion of further claims. This shall amount to 0.5% for each full week of delay, but in total no more than 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.

6. if dispatch is delayed at the CUSTOMER’s request, the CUSTOMER shall be charged the costs incurred by storage, starting one week after notification of readiness for dispatch, but at least 0.5% of the invoice amount for each month in the case of storage at HESTERBERG’s works. However, HESTERBERG is entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item and to supply the CUSTOMER with a reasonably extended deadline. HESTERBERG shall retain further claims, in particular rights from § 293 f. (304) BGB, taking into account the services of the CUSTOMER. The same applies to its rights from §§ 280 ff. BGB and for the claim for performance.

7. compliance with the delivery period presupposes the fulfillment of the CUSTOMER’s contractual obligations.

§ 5 Transfer of risk and acceptance

1. the risk shall pass to the CUSTOMER at the latest with the provision of the delivery parts, i.e. with the start of loading in the provision zone at HESTERBERG, even if partial deliveries are made or HESTERBERG has assumed other services, e.g. the shipping costs or transportation and installation. At the CUSTOMER’s request, HESTERBERG shall insure the shipment against theft, breakage, transport, fire and water damage as well as against other insurable risks at the CUSTOMER’s expense.

2. if dispatch is delayed due to circumstances for which the CUSTOMER is responsible, the risk shall pass to the CUSTOMER from the day on which the goods are ready for dispatch; however, HESTERBERG shall be obliged, at the request and expense of the CUSTOMER, to take out the insurance requested by the CUSTOMER.

3. items delivered shall be accepted by the CUSTOMER, even if they have minor defects, without prejudice to the rights under § 12.

4. partial deliveries are permissible.

§ 6 Refusal of acceptance / refusal of acceptance

1. if the CUSTOMER refuses acceptance/acceptance of the subject matter of the contract, the delivery or service, HESTERBERG can set it a reasonable deadline for acceptance or acceptance. If the CUSTOMER has not accepted or taken delivery of the object of the contract within the deadline set, HESTERBERG is entitled, without prejudice to the right to fulfillment of the contract, to withdraw from the contract or to demand compensation for non-fulfilment. In any case, HESTERBERG can demand 25% of the agreed price as compensation even without proof of the actual damage incurred and without prejudice to the possibility of asserting a higher actual damage. The CUSTOMER is at liberty to prove a lower actual damage.

2. if acceptance has been agreed or is mandatory, HESTERBERG is in any case entitled to apply for acceptance if there are no longer any significant defects and the functional and operational suitability is guaranteed. Significant defects in the sense of the order confirmation are such defects that call the suitability into question or significantly impair it. In this case, HESTERBERG must propose several possible acceptance dates to the CLIENT. The proposal must be received by the CUSTOMER at least two weeks before the envisaged dates. If none of these proposed acceptance dates is accepted by the CUSTOMER at least two days before such a date and if the CUSTOMER does not propose another date within four weeks of receipt of the proposal from HESTERBERG, acceptance shall be deemed to have been declared.

§ 7 Retention of title

1. the retention of title agreed below serves to secure all existing current and future claims of HESTERBERG against the CUSTOMER arising from the supply relationship existing between the contracting parties.

2 All deliveries and services shall be subject to retention of title. Delivered goods remain the property of HESTERBERG until full payment of the purchase price/fees and all other claims of HESTERBERG against the CUSTOMER from the current business relationship.

3. if the reserved goods are processed by the CUSTOMER, it is agreed that the processing is carried out in the name and for the account of HESTERBERG as manufacturer and HESTERBERG directly acquires the ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – the co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at HESTERBERG, the CUSTOMER hereby transfers its future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to HESTERBERG as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that HESTERBERG or the CUSTOMER acquires sole ownership, the party to which the main item belongs shall transfer the co-ownership of the uniform item to the other party on a pro rata basis in the ratio stated in p. 1.

4. the CUSTOMER is entitled to resell delivered goods and to sublicense them within the scope of the agreement made, revocably at any time within the scope of its proper business operations. The CUSTOMER hereby assigns to HESTERBERG by way of security all claims in connection with the resale and business relationship with its customers, including ancillary rights, in the amount of the value of the goods delivered in each case. The CUSTOMER is revocably authorized and obliged to report the assigned claims at any time.

5. HESTERBERG is entitled but not obliged to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the CUSTOMER, unless the CUSTOMER has demonstrably taken out the insurance itself.

6. the CUSTOMER may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, the CUSTOMER must inform HESTERBERG immediately. Should HESTERBERG incur damages due to omitted or delayed notification (e.g. through loss of rights), the CUSTOMER is liable for compensation.

7. in the event of breach of contract by the CUSTOMER, in particular default of payment, HESTERBERG shall be entitled to take back the goods after issuing a reminder and the CUSTOMER shall be obliged to surrender them.

8. the assertion of the retention of title and the seizure of the delivery item by HESTERBERG are not deemed to be a withdrawal from the contract.

9. HESTERBERG will release the reserved goods as well as the items or claims taking their place, insofar as their value exceeds the amount of the secured claims by more than
50 %. The selection of the objects to be released thereafter lies with HESTERBERG.

§ 8 Liability

1. The CUSTOMER’s right to demand compensation on the basis of claims dependent on fault shall be limited to cases of intent, gross negligence on the part of the owners, executive bodies or senior employees of HESTERBERG, negligent breach of essential contractual obligations (cardinal obligations), fraudulent concealment of defects, culpable injury to life, limb or health and the defect of a contractual object for which liability exists under the Product Liability Act for personal injury or property damage to privately used objects.

2. in the event of a negligent breach of essential contractual obligations (cardinal obligations) by HESTERBERG, the claim is limited to the amount of the foreseeable damage typical for the contract.

3. insofar as HESTERBERG is liable for damages on the merits, this liability is limited to damages which HESTERBERG foresaw as a possible consequence of a breach of contract when the contract was concluded or which it should have foreseen if it had exercised due care. Indirect damages and consequential damages, which are the result of defects in the delivery item, are also only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended. The above provisions of this paragraph shall not apply in the event of intentional or grossly negligent conduct on the part of members of the seller’s executive bodies or senior executives.

4. further claims for damages are excluded.

5. insofar as claims for damages exist against HESTERBERG, its vicarious agents or assistants, these shall lapse within one year of delivery. This period shall not apply to claims for damages by the CUSTOMER arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by HESTERBERG or its vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.

§ 9 Property rights / copyrights / confidentiality, etc.

1. all rights to patents, utility models and designs, trademarks, equipment and other property rights as well as copyrights for the subject matter of the contract and services shall remain with the holders of the rights. This also applies in particular to product designations, software and naming rights.

2. the contracting parties undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them through the business relationship.

3. drawings, tools, software, moulds, devices, models, templates, samples and similar objects, which are delivered, used or made available by or for HESTERBERG, are and remain the property of HESTERBERG. They may not be handed over or otherwise made accessible to unauthorized third parties. If the aforementioned objects are produced for HESTERBERG, these already become the property of HESTERBERG upon creation or production. The reproduction of such objects is only permitted within the framework of the operational requirements and the provisions of patent law, trademark law, copyright law and competition law.

4. contractual partners of the CLIENT shall be obligated accordingly.

5. the CUSTOMER may only refer to the business relationship with HESTERBERG in advertising with prior written consent.

§ 10 Conflict with third-party rights

1. if claims are made against the CUSTOMER by third parties due to direct infringement of property rights, including copyrights, due to deliveries and/or services by HESTERBERG, HESTERBERG shall indemnify the CUSTOMER with regard to the claims for damages recognized or settled against it as well as with regard to the court and lawyer’s costs; however, this only under the following conditions:

a) The CUSTOMER shall inform HESTERBERG immediately of the claim or warning by third parties, without having previously initiated any steps for defense. Excluded from this are immediate measures that must be initiated before HESTERBERG can be informed.

b) Only HESTERBERG is authorized to initiate defensive measures and to entrust lawyers with the implementation of the defensive measures and/or to make declarations and/or conduct other negotiations. At the request of HESTERBERG, the CUSTOMER shall commission a lawyer with the representation at the expense of HESTERBERG. If the CLIENT commissions its own lawyers in addition to those selected by HESTERBERG or without the consent of HESTERBERG, it shall bear the costs for this.

c) The CLIENT shall inform HESTERBERG immediately and continuously about the matter and in particular provide the necessary information and documents without delay.

2. the liability of HESTERBERG shall lapse if the infringement of the right of a third party results from a change to the object of the contract or parts thereof, if the object of the contract itself does not constitute an infringement of rights. Furthermore, liability shall lapse in the event that the CUSTOMER has undertaken further acts of use after being warned by a third party or in the knowledge of a possible infringement of third-party rights, unless HESTERBERG has agreed to further acts of use in writing.

3. in the event that it is legally established that further use of the subject matter of the contract infringes third-party property rights, including copyrights, or in the opinion of the CUSTOMER there is a risk of a property right or copyright action, HESTERBERG may, at its own expense and at its own discretion, either procure the right for the CUSTOMER to continue using the subject matter of the contract, or replace or modify the subject matter of the contract in such a way that an infringement no longer exists or is at least less likely. Such measures do not entitle the CUSTOMER under any circumstances to assert claims – of any kind whatsoever – against HESTERBERG.

§ 11 Warranty

1 HESTERBERG shall initially provide a warranty for defects in the goods at its discretion by means of rectification or subsequent delivery.

2. if the subsequent performance fails, the CUSTOMER may in principle demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal) at its discretion. However, the CUSTOMER shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the event of only minor defects.

3. the warranty period for new products is 1 year from delivery of the goods. In the case of used goods, the limitation period shall generally be 1 year from delivery of the goods. This shall not apply if the CUSTOMER has not notified HESTERBERG of the defect in good time (in accordance with Clause 4 of this provision).

4. only the contractual product description shall be deemed to be the quality of the goods. Public statements, promotions or advertising by the manufacturer or third parties do not constitute a contractual description of the quality of the goods.

5. if the CUSTOMER receives faulty assembly instructions, HESTERBERG shall only be obliged to supply faultless assembly instructions and only if the fault in the assembly instructions prevents proper assembly.
In the event of assembly problems attributable to faulty assembly instructions, the CUSTOMER must contact HESTERBERG by telephone so that HESTERBRG can provide advice. At the request of the CLIENT, the telephone costs will be reimbursed.

6. any modification or repair work carried out improperly by the CUSTOMER or third parties commissioned by the CUSTOMER without the prior approval of HESTERBERG shall invalidate the liability for the resulting consequences. In this case, the warranty obligation for HESTERBERG expires completely, unless the CUSTOMER proves that the changes or repair work were not causal for the damage.

7 The CUSTOMER shall not receive any guarantees in the legal sense from HESTERBERG. Any guarantees of third party manufacturers shall remain unaffected by this.

§ 12 Place of performance and jurisdiction

1. if the CUSTOMER is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between HESTERBERG and the CUSTOMER shall be the registered office of HESTERBERG. alternatively, HESTERBERG shall be entitled to assert claims against the CUSTOMER in any other legally permissible place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.

2 The relationship between HESTERBERG and the CUSTOMER shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

§ 13 Written form

Collateral agreements shall only be effective if they are made in writing. Amendments and/or supplements must be made in writing. This also applies to the waiver of the written form requirement itself.

§ 14 Severability clause

1. should a provision of these terms and conditions be or become invalid or should the terms and conditions contain a loophole, the legal validity of the remaining provisions shall remain unaffected.

2. to the extent that the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.

Status: 01.06.2024