General terms and conditions
Terms and conditions of purchase
Terms of delivery and payment
Terms and conditions of purchase
1 Scope of application:
The following General Terms and Conditions of Purchase (hereinafter: GTC) shall apply to all business transactions between Hoffmann GmbH (hereinafter: HOFFMANN) and entrepreneurs (Section 14 of the German Civil Code), legal entities under public law or special funds under public law (hereinafter: Supplier), even if they are not mentioned again separately in subsequent contracts. Deviating, conflicting or supplementary General Terms and Conditions of the Supplier are hereby rejected. These GTC shall also apply if we execute the order in ignorance of terms and conditions that conflict with or deviate from these GTC. Differing, deviating or conflicting terms and conditions of business or purchase of the Supplier are only effective if they have been confirmed in writing by HOFFMANN. The same applies to amendments and supplements to such General Terms and Conditions. Oral commitments and collateral agreements require the written confirmation of HOFFMANN.
2 Delivery and transfer of risk:
2.1 The delivery of goods shall be DDP (Incoterms 2020) 73230 Kirchheim unter Teck, Tannenbergstraße 131 (Germany) and at the Supplier’s risk. The place specified in the order shall be decisive. The risk shall pass upon delivery to the place specified by HOFFMANN in the order during business hours.
2.2 Shipment shall be at the supplier’s risk. The Supplier shall bear the risk of loss, damage or destruction of the goods until the time of their handover at the place of fulfilment. This also applies if the goods are dispatched at the request of HOFFMANN.
2.3 The Supplier shall bear the packaging and transport costs.
2.4 Agreed delivery periods and dates are binding. The date of receipt of the goods at the delivery address specified by HOFFMANN is decisive for compliance with the delivery periods and dates by the Supplier.
2.5 In the event of a delay in delivery, HOFFMANN shall be entitled to demand from the Supplier a lump-sum compensation for our damage caused by the delay in the amount of 1% of the net price for each completed calendar week of the delay, but in total not more than 5% of the net price of the goods delivered late. The assertion of further damages by HOFFMANN shall remain unaffected, but the contractual penalty shall be set off accordingly.
2.6 In the event of a delay in delivery, HOFFMANN shall be entitled to withdraw from the contract without prior notice of default or granting of a grace period and to make a covering purchase. All resulting additional costs shall be borne by the supplier.
2.7 Causes or events that lead to a cessation or restriction in the operations of HOFFMANN or its customers, operational disruptions of any kind, outbreak of war, official orders by law, decrees or similar, events of force majeure, strikes and lockouts entitle HOFFMANN to postpone the fulfilment of assumed purchase obligations or to withdraw from the contract in whole or in part. Claims for damages cannot be derived from this. In this case, the Supplier must inform HOFFMANN within 3 days of the quantities it has already stored or partially processed and the proportion of labour costs incurred. The Supplier expressly waives overheads and loss of profit.
3 Quality of the goods:
3.1 Delivered goods must comply with the agreed qualities, the state of the art, the applicable statutory regulations and official orders as well as the regulations of professional associations, professional organisations and trade associations and fulfil the specified functions.
3.2 Delivered goods shall be free from defects of title, in particular free from patent rights, copyrights or other industrial property rights of third parties in the member states of the European Union or in the agreed country of destination; patents, copyrights or other industrial property rights of third parties shall not be infringed, in particular not by the delivery and use of the goods.
3.3 If goods are ordered in accordance with specific requirements, drawings or samples, the Supplier shall guarantee to deliver the goods exactly in accordance with these requirements. The Supplier shall be liable for any damage incurred during further processing by HOFFMANN or its customers.
3.4 HOFFMANN shall be entitled to return rejected goods at the Supplier’s expense and to issue a debit note. The Supplier must provide a replacement without delay, including for goods that have already been partially processed and are rejects due to a defect. The Supplier shall also be liable for damage caused by the fact that a rejected good cannot be processed by HOFFMANN and HOFFMANN is, for example, in default of delivery as a result. Section 377 (1-4) of the German Commercial Code shall not apply.
4 Invoice and terms of payment:
4.1 The prices shall be DDP (Incoterms 2020) 73230 Kirchheim unter Teck, Tannenbergstraße 131 (Germany), plus the statutory value added tax applicable at the time of delivery.
4.2 The invoice shall be sent in a single copy to the billing address specified in the order. The invoice may not be sent before the goods are dispatched or together with the goods.
4.3 The agreed price shall be due for payment upon complete delivery and performance (including any agreed acceptance) and receipt of a proper invoice with the following deadlines: Invoices with an invoice date from the 1st to the 15th shall be paid on the 30th of the month with a 3% discount or net on the 15th of the month after next. Invoices with an invoice date from the 16th to the 31st are paid on the 15th of the following month with a 3% discount or net on the 30th of the month after next. In the case of bank transfer, payment is deemed to have been made on time if our transfer order is received by our bank before expiry of the payment deadline; we are not responsible for delays caused by the banks involved in the payment process.
4.4 HOFFMANN shall be entitled to deduct direct debits issued by it also from earlier deliveries or services without loss of discount.
5 Applicable law, agreement on place of jurisdiction:
5.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the referral rules of German private international law.
5.2 The exclusive place of jurisdiction is the registered office of Hoffmann GmbH in 73230 Kirchheim unter Teck. However, HOFFMANN shall be entitled to bring an action at the Supplier’s place of business.
6 Final provisions:
6.1 The Customer shall not be entitled to assign its claims arising from the contract.
6.2 If one or more provisions of these Terms and Conditions of Purchase are or become invalid, the contracting parties shall replace or supplement the invalid or incomplete provision with appropriate provisions that correspond as far as possible to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected.
Terms of delivery and payment
1 Scope of application
The following Terms and Conditions of Delivery and Payment (hereinafter: T&Cs) shall apply to all business transactions between Hoffmann GmbH (hereinafter: HOFFMANN) and entrepreneurs (Section 14 of the German Civil Code), legal entities under public law or special funds under public law (hereinafter: Customer), even if they are not mentioned again separately in subsequent contracts. Any deviating, conflicting or supplementary General Terms and Conditions of the Customer are hereby rejected. These T&Cs shall also apply if we fulfil the order in ignorance of terms and conditions that conflict with or deviate from these T&Cs. Different, deviating or conflicting terms and conditions or terms and conditions of purchase of the Customer are only effective if they have been confirmed in writing by HOFFMANN. The same shall apply to amendments and supplements to these Terms and Conditions of Delivery and Payment. Verbal commitments and collateral agreements require written confirmation by HOFFMANN.
2 Conclusion of contract, suitability and delivery
2.1 HOFFMANN’s offers are subject to change and non-binding.
2.2 Orders must be placed by the Customer in writing and require a written order confirmation or the commencement of the performance of the contractual services by HOFFMANN for a contract to be concluded.
2.3 It is the sole responsibility of the Customer to check the suitability of our products and services for its purposes (including the purposes of its customers). Liability for the suitability of our products and services for the purposes of the Customer presupposes that we have confirmed or guaranteed the suitability in writing.
2.4 Any reference to certifications, DIN or CE standards merely constitutes a description of the goods. A warranty of characteristics within the meaning of Section 443 of the German Civil Code must be expressly agreed or labelled as such.
2.5 The delivery dates stated by HOFFMANN are non-binding unless they are designated as binding in writing.
2.6 Deliveries are made ‘ex works’ or E.X.W. (Incoterms 2020) 73230 Kirchheim unter Teck, Tannenbergstr. 131 (Germany) and at the risk of the Customer.
2.7 The delivery period shall be extended in the event of hindrances to business operations and/or the business operations of our suppliers for which we are not responsible, in particular due to strikes, lawful lockouts, official orders and all other cases of force majeure. The delivery period shall be extended by the duration of the hindrance, plus a reasonable start-up period. The same shall apply in the event of operational disruptions, lack of raw materials or operating resources, lack of transport facilities and in the event of late, improper or insufficient delivery by our suppliers, if we are not responsible for these circumstances and insofar as they can be proven to have a significant influence on the delivery of the delivery item. We shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay. We shall inform the Customer as soon as possible of the beginning and probable end of such hindrances. The above restrictions do not apply to fixed-date transactions. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Customer.
2.8 HOFFMANN shall be entitled to make partial deliveries, provided that acceptance of such partial deliveries is not unreasonable for the Customer.
2.9 Each partial delivery may be invoiced separately.
2.10 For all productions, HOFFMANN reserves the right to make excess or short deliveries of up to 10% of the order quantity for technical reasons. To this extent, short deliveries are not deemed to be insufficient quantities and do not constitute a defect.
3. Materials of the Customer; liability
Insofar as materials provided by the Customer are used in the manufacture of the articles, HOFFMANN requires an additional quantity of at least 10 % for production. Any liability of HOFFMANN for the materials supplied by the Customer is excluded.
4 Prices and terms of payment
4.1 All prices shall be ‘ex works’ or E.X.W. (Incoterms 2020) 73230 Kirchheim unter Teck, Tannenbergstr. 131, (Germany), plus the statutory value added tax applicable at the time of delivery.
4.2 Payments shall be due immediately after invoicing without any deduction. Thirty days after receipt of the invoice or equivalent payment schedule, default shall occur without reminder.
4.3 Payments by cheque shall be excluded, unless otherwise agreed.
4.4 If one of our due claims is not settled even after a payment reminder and the expiry of a further period of two weeks, all our claims arising from the business relationship with the Customer shall become due immediately. We shall then be entitled to make further deliveries only against advance payment or the provision of sufficient security.
4.5 Offsetting or the assertion of a right of retention due to disputed or not legally established counterclaims is excluded. The Customer may only assert a right of retention on the basis of its own claims arising from the same contractual relationship.
5 Price changes
Price changes are permissible if there are more than 4 months between the conclusion of the contract and the agreed delivery date. If wages, material costs or market cost prices increase thereafter until completion of the delivery, we shall be entitled to increase the price appropriately in line with the cost increases. The Customer shall only be entitled to withdraw from the contract if the price increase significantly exceeds the increase in the general cost of living between the order and delivery.
6 Transport and sales packaging, disposal
6.1 Packaging shall become the property of the Customer.
6.2 The Customer shall assume the obligation to properly dispose of the transport packaging after delivery on its own responsibility and at its own expense in accordance with the statutory provisions.
6.3 The Customer shall indemnify us against the obligations under Section 4 of the German Packaging Ordinance (obligation to take back transport packaging) and all associated third-party claims of any kind whatsoever.
6.4 Our claim for acceptance/exemption in accordance with the above provisions shall not expire before the expiry of two years after delivery.
6.5 Upon request, the Customer shall prove to us that it has taken organisational measures for the proper disposal of transport packaging and how these are structured in detail. If the Customer has entered into disposal obligations with its customers or other third parties, the Customer shall inform us of this on request.
6.6 The above provisions in clauses 2 to 5 shall apply accordingly to sales packaging. However, this shall not apply if the Customer (within the meaning of Section 3 (11) of the Packaging Ordinance) does not resell the delivery items in the form delivered to the Customer; in this case, our obligation to take back sales packaging and the other provisions of the Packaging Ordinance shall remain in force.
7 Retention of title
7.1 We reserve title to the delivery items until the respective delivery has been paid in full. If the Customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the delivery items after setting a deadline and withdrawing from the contract. The statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Customer is obliged to surrender the goods after cancellation of the contract.
7.2 The Customer shall be entitled to resell the delivery items in the ordinary course of business; however, the Customer hereby assigns to us all claims in the amount of the purchase price agreed between us and the Customer (including VAT) and with all ancillary rights accruing to the Customer from the resale, irrespective of whether the delivery items are resold without or after processing. The Customer shall be entitled to collect these claims after their assignment. Our authorisation to collect the claims ourselves remains unaffected by this; however, we undertake not to collect the claims as long as the Customer duly fulfils its payment obligations, is not in default of payment and no application for the opening of insolvency, composition or general enforcement proceedings has been filed or the Customer completely suspends its payments. If this is the case, however, the Customer is obliged to disclose the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to inform the debtors (third parties) of the assignment.
7.3 The processing or transformation of the goods by the Customer shall always be carried out on our behalf. If the delivered items are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered items to the other processed items at the time of processing. The same provisions shall apply to the new item created by processing as to the items delivered subject to retention of title.
7.4 If the delivery items are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other mixed items at the time of mixing. The Customer shall hold the co-ownership for us.
7.5 The Customer may neither pledge the delivery items nor assign them as security. In the event of seizure, confiscation or other dispositions by third parties, the Customer must notify us immediately and provide us with all information and documents necessary to protect our rights. Enforcement bodies or third parties must be informed of our ownership.
7.6 We undertake to release the securities to which we are entitled at the Customer’s request insofar as they exceed the value of the claims to be secured by more than 20%, insofar as these have not yet been settled.
8 Property rights
8.1 Insofar as HOFFMANN manufactures products on behalf of and according to the specifications of the Customer (moulds, drawings, etc.), HOFFMANN is not obliged to check whether the manufacture and delivery of the products infringes the property rights of third parties. The Customer shall be liable without limitation for infringements of industrial property rights of any kind. The Customer hereby indemnifies HOFFMANN against all claims and costs insofar as a third party asserts the infringement of property rights against HOFFMANN in these cases.
8.2 Drawings, drafts and design proposals made by HOFFMANN may not be made accessible to third parties or used in any other way without the written consent of HOFFMANN. This also applies insofar as they are not protected by copyright.
9 Production aids/tools and costs
9.1 All tool costs offered and invoiced in connection with the manufacture of ordered moulded parts and tools shall be deemed to be pro rata tool costs, unless expressly agreed otherwise.
9.2 In the case of tools manufactured by HOFFMANN, HOFFMANN shall always be the owner of the tools, even in the case of pro rata tool costs. The tools will be kept for repeat orders, but for a maximum of three years after the last order was placed.
9.3 No warranty or liability shall be assumed for tools that are subject to natural wear and tear, in particular due to their condition or the nature of their intended use; if the wear and tear cannot be repaired, a new tool cost must be charged.
9.4 No warranty or liability shall be assumed for tools that the Customer makes available to HOFFMANN. Maintenance, servicing and repair costs shall be borne by the Customer. The provisions in the preceding paragraph 3 shall apply accordingly.
10 Warranty
10.1 Incorrect deliveries, quantity errors or recognisable defects must be reported immediately by the Customer in writing. Notices of defects are only admissible as long as the goods can still be inspected in the condition in which they were delivered.
10.2 Defects that were not recognisable upon delivery, even with proper inspection, must be notified in writing within 5 working days of discovery at the latest.
10.3 If there is a defect, HOFFMANN may remedy it at its own discretion by repair or replacement. If the rectification or replacement delivery has finally failed, the Customer is entitled, at its discretion, to cancel the order (cancellation) or to a reasonable reduction of the purchase price (reduction). Rectification or replacement delivery shall be carried out without recognition of a legal obligation and shall not interrupt the limitation period for claims for defects in the goods.
10.4 The limitation period for claims for defects shall be twelve months from delivery. However, this limitation shall not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods.
10.5 If the Customer or a third party has carried out modifications or repair work on the goods or has not used them in accordance with their intended purpose, there is no entitlement to a warranty claim.
11 Liability
11.1 Claims of the Customer for compensation for expenses or damages, irrespective of the legal grounds, shall be limited to damages caused by HOFFMANN or one of our vicarious agents or contractors
a) intentionally,
b) through gross negligence or,
c) in the case of essential contractual obligations, through slight negligence.
Material contractual obligations in this sense are such obligations of HOFFMANN which are intended to fulfil the rights of the Customer which the Customer has according to the content and purpose of the contract, as well as such obligations the fulfilment of which is essential for the proper performance of the concluded contract and on the observance of which the customer regularly relies and has relied.
11.2 The limitations of liability shall not apply to claims of the Customer (i) under the Product Liability Act, (ii) for fraudulently concealed defects, (iii) for defects in respect of which a guarantee of quality has been given, (iv) for damages resulting from injury to life, limb or health or (v) for any other mandatory statutory liability.
12 Applicable law, place of jurisdiction
12.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and to the exclusion of German private international law.
12.2 The exclusive place of jurisdiction is the registered office of Hoffmann GmbH in 73230 Kirchheim unter Teck. However, HOFFMANN shall also be entitled to sue the Customer at its registered office.
13 Final provisions
13.1 The Customer is not authorised to assign his claims arising from the contract.
13.2 If one or more provisions of these Terms and Conditions of Delivery and Payment are or become invalid, the contracting parties shall replace or supplement the invalid or incomplete provision with appropriate provisions that correspond as far as possible to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected.
