Hartmetall-Gesellschaft  

General Terms and Conditions
of Hartmetall Company Bingmann GmbH & Co. KG

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1. Application Area

  1. These General Terms and Conditions shall only apply to corporate entities in the performance of their commercial or independent professional activities and to legal entities under public law. They shall apply to all commercial transactions between Hartmetall Company Bingmann GmbH & Co. KG (hereinafter referred to as the "Hartmetall Company") and the customer even if they are not mentioned in subsequent contracts. They shall apply accordingly to work performed and services. Acceptance of the product delivered shall be replaced by an inspection and approval of the work performed or the receipt of the service.
  2. Any Customer terms that conflict with, are added to, or deviate from these General Terms and Conditions shall not become part of the contract unless the Hartmetall Company approves their application in writing. These General Terms and Conditions shall apply even when the Hartmetall Company made a delivery to the Customer without reservation and in full knowledge of said Customer's conflicting, additional or deviating terms.
  3. Conflicting, additional or deviating agreements on these General Terms and Conditions that were made between the Hartmetall Company and the Customer with respect to the execution of a contract must be set forth in writing in the contract. This shall apply as well to a waiver of this written form requirement.
  4. Any rights that the Hartmetall Company is entitled to under legal provisions or other agreements beyond these General Terms and Conditions shall remain unaffected.

2. Conclusion of Contract with respect to Orders outside of the Online Shop

  1. Any offer made by the Hartmetall Company shall be subject to change and non-binding unless the Hartmetall Company states something to the contrary.
  2. An order does not become binding until it has been confirmed by the Hartmetall Company in a written order confirmation or unless the Hartmetall Company executes the order, especially by sending the products that were ordered, within two weeks from the order date. An order confirmation generated by automated means that does not bear a signature or name shall be deemed as having been made in writing. If the order confirmation contains clear errors, clerical errors or calculation mistakes, it shall not be binding for the Hartmetall Company.

3. Conclusion of Contract with respect to Orders placed via the Online Shop

With respect to orders placed via the online shop of Hartmetall Company, the Customer may select the products of the Hartmetall Company and place them in its "Shopping cart." An order is bindingly initiated by the Customer when the Customer clicks on the "Buy now" button in the "Shopping cart" area at the end of the order process. Prior to clicking on the "Buy now" button, the Customer is able to edit the information previously entered, the content of the shopping cart or discontinue the order process by leaving the online shop. The Hartmetall Company stores the wording of the contract after an order is placed. Said wording is not, however, made available to the Customer. A contract is not concluded until the Hartmetall Company accepts the order by sending an order confirmation or the respective product. After having placed the order, the Customer shall receive a confirmation of the receipt of its order. Said confirmation does not constitute an acceptance of the offer but only serves to inform the Customer that the order was received unless said confirmation includes not just a confirmation of receipt but an acceptance of the order as well.

4. Product Information, Documents, Withdrawal

  1. Pictures, drawings, weights and dimensions as well as descriptions of the products in the documents that are part of the offer are only approximate unless they are specifically denoted as binding. They do not constitute an agreement on or guarantee of a corresponding quality or durability of the product unless these were specifically agreed upon as such.
  2. The Hartmetall Company reserves all ownership rights, copyrights and other proprietary rights to all offer documents. Such documents may not be made available to third parties. The Customer shall promptly surrender to the Hartmetall Company any and all offer documents that belong to the Hartmetall Company as soon as they are no longer needed for the normal business transaction. The same shall apply accordingly to all other records, drafts, samples, prototypes and models.
  3. If the financial situation of the Customer deteriorates significantly or if a well-founded application for the opening of insolvency proceedings or comparable proceedings is filed with respect to the Customer's assets or if said application is dismissed for lack of assets, the Hartmetall Company shall be entitled to withdraw from the contract, either in whole or in part.

5. Scope of the Delivery, Changes to the Products

  1. The written order confirmation from the Hartmetall Company shall be authoritative for the scope of the delivery. Changes made by the Customer to the scope of the delivery shall require a written confirmation from the Hartmetall Company to be valid. The right to make design and form changes to the product shall remain reserved if these changes are customary deviation or if the changes are within the DIN tolerances or if the changes are insignificant and not unreasonable for the Customer. The same shall apply accordingly to the selection of the material, the specification and the design.
  2. Partial delivery is allowed unless a partial delivery is unreasonable to the Customer in consideration of the interests of the Hartmetall Company.
  3. For technical production reasons, the Hartmetall Company reserves the right to deliver up to 10% more or less of the scope of delivery. No claims for defects may be derived from this circumstance.

6. Delivery Period, Transport Insurance

  1. Any agreement on delivery periods (delivery deadlines and dates) shall require the written form. Delivery deadlines and dates shall be non-binding unless they were previously identified as binding by the Hartmetall Company in writing.
  2. The delivery period shall commence at the conclusion of contract but not prior to the submission of all documents, permits and approvals to be provided by the Customer, the clarification of all technical questions as well as the receipt of a down-payment that was agreed upon or, in the event of an international transaction, the receipt of payment in full. In the case of a delivery date, the delivery date shall be postponed accordingly if the Customer does not submit the documents and permits to be provided by the Customer in a timely manner, if the Customer does not grant the approvals in a timely manner or if the down-payment that was agreed upon, or, in the event of an international transaction, payment in full is not received by the Hartmetall Company in a timely manner. A condition for compliance with the delivery period is the timely and proper fulfillment of the other obligations of the Customer.
  3. The delivery period shall be deemed as having been complied with if the product leaves the factory on or before the last day of the delivery period or if the Hartmetall Company has informed the Customer that the products are ready for pickup or shipment. Compliance with the delivery period is subject to proper, in particular timely, deliveries to the Hartmetall Company unless the Hartmetall Company is the reason why proper deliveries could not be made. In the event the Hartmetall Company did not receive its deliveries as expected, it may withdraw from the contract. The Hartmetall Company must inform the Customer immediately if the Hartmetall Company wishes to make use of its right to withdraw and shall return any payments the Customer has already made.
  4. The products are transported or shipped without insurance unless the Customer specifically instructed the Hartmetall Company in writing to take out transport insurance.

7. Cross-Border Shipments

  1. In the case of cross-border shipments, the Customer must provide the competent authorities with all declarations and take all steps necessary for the export from Germany and the import to the destination country in a timely manner, obtain, in particular, all customs documents and meet the requirements of any export controls or other marketability restrictions.
  2. Shipments shall be made subject to the condition that it can be performed notwithstanding any national or international regulations, especially export control regulations as well as embargoes or other sanctions.
  3. Delays caused by export controls shall extend the delivery periods accordingly; delivery dates shall be pushed back accordingly.

8. Prices and Payment

  1. For lack of a separate agreement, prices shall be understood as ex works. They do not include any shipping or packaging costs, any insurance, statutory taxes, customs or other charges. The costs incurred in this regard, especially the costs for the packaging and transport of the products, shall be billed separately. The statutory value added tax shall be stated separately on the invoice in the statutory amount applicable on the date the invoice was generated.
  2. If production-related price increases take place on or before the delivery date, the Hartmetall Company shall be entitled to adjust the price accordingly regardless of the offer and order confirmation.
  3. For lack of a separate agreement, the delivery price shall be paid net within 14 days from the receipt of the invoice. The payment date is the date on which the Hartmetall Company is able to dispose of the delivery price. In the event of a default of payment, the Customer shall pay default interest in the amount of 9 percentage points above the respective annual prime rate. Any further claims the Hartmetall Company may have shall remain unaffected.
  4. In the case of international transactions, payment shall, in deviation from paragraph 3, be made prior to delivery unless the parties had previously agreed on something else in writing.
  5. Bills of exchange and checks shall be accepted on account of fulfillment. The fulfillment effect does not occur until the respective amount has been irrevocably credited to the Hartmetall Company. The Customer shall bear all costs incurred with respect to bills of exchange or checks, especially exchange charges of check fees.

9. Transfer of Risk

  1. The risk of accidental loss and accidental deterioration shall transfer to the Customer as soon as the products are handed over to the person carrying out the transport or leave the warehouse of the Hartmetall Company for shipping purposes. In the event they are picked up by the Customer, the risk of accidental loss shall transfer to the Customer with the notification that the products are ready for pickup. Clause 1 and clause 2 shall apply as well to partial delivery or if the Hartmetall Company has assumed other responsibilities such as the cost of transport or the assembly of the products at the Customer's facilities.
  2. If the Customer is in default of acceptance, the Hartmetall Company shall be entitled to request compensation for the damages incurred as well as a reimbursement of any additional expenses unless the Customer is not responsible for the non-acceptance of the products. The same shall apply, if the Customer does not meet any other cooperation obligations, unless the Customer is not responsible for the failure to meet other cooperation obligations. The risk of accidental loss or an accidental deterioration of the products shall transfer to the Customer at the latest at the time the Customer is in default of acceptance. Following the unsuccessful expiry of a time limit set by the Hartmetall Company, the Hartmetall Company shall be entitled to make other dispositions for the products and supply the products to the Customer following a reasonably extended delivery period.
  3. If delivery is delayed due to circumstances for which the Hartmetall Company is not responsible, the risk shall transfer together with the notification that the products are ready for shipment.
  4. Notwithstanding its claims for defects, the Customer must take delivery of the products even if they have insignificant defects.

10. Claims for Defects

  1. The Customer shall only have claims for defects if the Customer inspects the products when they are delivered, if reasonable even in the form of a sample processing or sample use, and has informed the Hartmetall Company of any visible defects in writing immediately and at the latest two weeks after the delivery of the products. Hidden defects must be reported to the Hartmetall Company in writing immediately and at the latest two weeks after they are uncovered. The Customer must describe the defects in the written notification sent to the Hartmetall Company. The Customer must furthermore adhere to the requirements, notices and conditions in the technical notices, instructions and other documents pertaining to the individual products when assembling, processing and using said products. The Customer shall not be entitled to any claims for defects caused by a violation of this obligation.
  2. In the event the products are defective, the Hartmetall Company shall, at its own discretion, be entitled to provide supplementary performance either in the form of a remediation of the defects or the provision of a product free from defects. In the event of a supplementary performance, the Hartmetall Company shall be required to bear all expenses incurred for the purpose of a supplementary performance, in particular transport, travel, labor and material costs. Replaced parts shall become the property of the Hartmetall Company and must be returned to the Hartmetall Company.
  3. If the Hartmetall Company is not willing or able to provide supplementary performance, the Customer may, at its discretion, either withdraw from the contract or reduce the delivery price notwithstanding any claims for damages or reimbursement of expenses. The same shall apply if the supplementary performance fails, is unreasonable for the Customer or is delayed by longer than reasonable time limits for reasons for which the Hartmetall Company is responsible.
  4. The Customer shall not have a right to withdraw if it is unable to return the performance received, if this inability is not due to the fact that the return is impossible due to the nature of the performance received, or due to the fact that the Hartmetall Company is responsible for this circumstance or due to the fact that the defect was not found until the products were processed or altered. The Customer shall furthermore not have a right to withdraw if the Hartmetall Company is not responsible for the defect and if the Customer must replace the value instead of the return.
  5. No claims for defects shall arise for defects caused by natural wear, especially with respect to wear parts, improper treatment, assembly, use or storage or improperly performed alternations or repairs of the products by the Customer or third parties. The same shall apply to defects that are attributable to the Customer or that have a technical cause other than the original defect.
  6. The Customer shall not have any claims to a reimbursement of expenses instead of damages in lieu of performance if the expenses had not been incurred by a reasonable third party either.
  7. The Hartmetall Company does not provide any warranties, especially no warranties on the properties or durability of the products, unless something else was agreed upon in writing in a specific case.
  8. The limitation period for the Customer's claims for defects is one year unless a consumer goods purchase occurs at the end of the supply chain (the end customer is a consumer). If the defective products were used in a manner that is customary for a structure and rendered said structure defective or if it is a defect in a structure, the limitation period shall be five years. The limitation period of one year shall furthermore apply to claims arising from unauthorized actions that are based on a defect of the products. The limitation period shall begin with the delivery of the products. The limitation period of one year shall not apply to the unlimited liability of the Hartmetall Company for damages associated with a breach of a warranty or an injury to life body or health, to damages caused by intent or gross negligence and to product defects or to the extent the Hartmetall Company assumed a procurement risk. A statement made by the Hartmetall Company about a claim for defects asserted by the Customer shall not be considered an entry into negotiations about the claim or the circumstances that gave rise to the claim, provided the Hartmetall Company has fully rejected the claim for defects.

11. Liability of the Hartmetall Company

  1. The Hartmetall Company shall be fully liable for any damages relating to the breach of a warranty or an injury to life, body or health. The same shall apply to intent and gross negligence or to the extent the Hartmetall Company assumed a procurement risk. The Hartmetall Company shall only be liable for slight negligence if material duties were not met that result from the nature of the contract and that are of particular importance for the achievement of the contractual purpose. In the event of a breach of such duties, default and inability, the liability of the Hartmetall Company shall be limited to such damages that are typically expected to arise in the context of this contract. Any statutory liability for product defects shall remain unaffected.
  2. To the extent the liability of the Hartmetall Company is excluded or limited, this shall apply as well to the personal liability of the employees, co-workers, representative and ancillary agents of the Hartmetall Company.

12. Product Liability

  1. The Customer shall not modify the products and shall, in particular, not edit or remove any existing warnings about the risks associated with an improper use of the products. If this duty is breached, the Customer shall, with respect to its relationship with the Hartmetall Company, indemnify and hold the Hartmetall Company harmless from any third-party claims unless the Customer is not responsible for the modification of the products.
  2. If, due to a defect of the products, the Hartmetall Company must recall a product or issue a warning for a product, the Customer shall, at the best of its abilities, help with the measures that the Hartmetall Company considers necessary and expedient and support the Hartmetall Company in this respect, especially with regard to the determination of the required customer data. The Customer shall be required to bear the costs of the product recall or warning unless the Customer is not responsible for the product defect under the principles of product liability law. Any further claims the Hartmetall Company may have shall remain unaffected.
  3. The Customer shall promptly inform the Hartmetall Company in writing about any risks relating to the use of the products and potential product defects for which the Customer becomes aware.

13. Force Majeure

  1. If the Hartmetall Company is prevented from meeting its contractual duties due to force majeure, in particular the delivery of the products, the Hartmetall Company shall be released from its duty to perform for the duration of the impairment as well as a reasonable start-up time without being required to pay the Customer any damages. The same shall apply if the Hartmetall Company is unreasonably impaired in the fulfillment of its obligations or rendered temporarily unable from fulfilling them due to unforeseeable circumstances for which the Hartmetall Company bears no responsibility, such as labor disputes, official measures, energy shortfalls, delivery issues at a supplier or significant production disruptions. This shall apply as well if these circumstances arise for a supplier. This shall furthermore apply if the Hartmetall Company is already in default. To the extent the Hartmetall Company is released from the delivery obligation, the Hartmetall Company shall return any advance payments the Customer may have made.
  2. Following the expiry of a reasonable time limit, the Hartmetall Company shall be entitled to withdraw from the contract if such an impairment continues for more than three months, and the Hartmetall Company is no longer interested in the fulfillment of the contract due to the impairment. At the Customer's request, the Hartmetall Company shall declare upon the expiry of the time limit whether it wishes to make use of its right to withdraw or whether it will deliver the products within a reasonable time limit.

14. Retention of Title

  1. The delivered products shall remain the property of the Hartmetall Company until the delivery price and all receivables the Hartmetall Company is entitled to from the Customer with respect to the business relationship have been paid. The Customer shall be required to treat all products subject to the retention of title carefully for the duration of the retention of title.
  2. The Customer may only sell products subject to the retention of title in the course of ordinary business. With regard to all other aspects, the Customer may not pledge, provide as security or make any other dispositions regarding the products subject to the retention of title that might put the title of the Hartmetall Company at risk. With respect to liens or other third-party interferences, the Customer shall promptly inform the Hartmetall Company in writing and provide all information necessary to inform the third party about the ownership rights of the Hartmetall Company and shall assist with the steps taken by the Hartmetall Company to protect the products subject to the retention of title. If the third party is unable to reimburse the Hartmetall Company for the court fees or out-of-court expenses incurred for the assertion of the ownership rights of the Hartmetall Company, the Customer shall be required to reimburse the Hartmetall Company for the resulting losses unless the Customer is not responsible for the breach of duty.
  3. The Customer hereby assigns to the Hartmetall Company all claims resulting from the resale of the products along with all ancillary rights, regardless of whether the products subject to the retention of title are sold without having been processed further or after they have been processed. The Hartmetall Company hereby accepts this assignment. If such an assignment is not lawful, the Customer hereby instructs the third-party debtor to make any payments to the Hartmetall Company only. The Customer is hereby irrevocably authorized to collect any of the claims assigned to the Hartmetall Company in the Customer's name on behalf of the Hartmetall Company. The collected amounts shall promptly be transferred to the Hartmetall Company. The Hartmetall Company may revoke the Customer's collection authorization as well as the Customer's resale authorization for cause, especially if the Customer does not duly meet the payment obligations it has to the Hartmetall Company, if the Customer is in default, if the Customer ceases to make payments or if the opening of insolvency proceedings or comparable proceedings is requested with respect to the Customer's assets to settle existing debt, or if the well-founded request made by a third party for the opening of insolvency proceedings or comparable proceedings with respect to the Customer's assets to settle existing debt is dismissed for lack of assets. In the case of a blanket assignment by the Customer, the claims assigned to the Hartmetall Company must be expressly exempted.
  4. If requested by the Hartmetall Company, the Customer shall be required to promptly inform the third-party debtor about the assignment and provide the Hartmetall Company with the information and documents required for the collection.
  5. In the event of non-contractual conduct, especially if the Customer is in default of payment, the Hartmetall Company may, notwithstanding any other rights, be entitled to withdraw from the contract following the expiry of a reasonable grace period set by the Hartmetall Company. The Customer shall promptly grant the Hartmetall Company or its agent access to the product subject to the retention of title and surrender the same. Following a corresponding timely announcement, the Hartmetall Company may use the products subject to the retention of title otherwise to satisfy any claims against the Customer that are payable.
  6. Any processing or alteration the Customer may perform on the products subject to the retention of title shall always be performed on behalf of the Hartmetall Company. The Customer's expectant rights to the products subject to the retention of title shall transfer to the processed or altered items. If the products are processed or altered together with other items that do not belong to the Hartmetall Company, the Hartmetall Company shall jointly own the new items in the ratio of the value of the supplied products to the other items that were processed at the time they were processed. The same shall apply if the products of the Hartmetall Company are joined to or mixed with other items that do not belong to the Hartmetall Company in such a way that the Hartmetall Company loses its full ownership. The Customer shall store the new items on behalf of the Hartmetall Company. In all other aspects, the items created by the processing or alternation as well as the joining or mixing shall be subject to the same provisions as the projects that are subject to the retention of title.
  7. If requested by the Customer, the Hartmetall Company shall be required to release any security it is entitled to in as much as the realizable value of the security exceeds, in consideration of customary valuation discounts, the claims of the Hartmetall Company from the business relationship with the Customer by more than 10%. The valuation must be based on the invoiced value of the products subject to the retention of title and the nominal value of any claims. The Hartmetall Company shall be entitled to select the specific items to be released.
  8. In the event the products are delivered in other countries, in which these provisions governing a retention of title do not have the same securing effect as in the Federal Republic of Germany, the Hartmetall Company hereby grants a corresponding security interest. If further measures are required in this regard, the Customer shall do what is necessary to promptly grant the Hartmetall Company such a security interest. The Customer shall assist with all measures that are required or useful for the effectiveness and enforceability of such security interests.

15. Confidentiality

  1. The Parties are required to keep all information they become privy to which is identified as confidential or recognizable as business or trade secrets based on other circumstances as confidential for the duration of five years from delivery and not to record, disclose or exploit said information, unless it is necessary for the business relationship.
  2. The duty to maintain confidentiality shall not apply if the information was verifiably known to the receiving party prior to the start of the contractual relationship or if it was accessible to the public or becomes generally known or accessible without the fault of the receiving party. The receiving party shall bear the burden of proof.
  3. The parties shall ensure in suitable contractual arrangements with individuals working for them and their agents, especially their freelancers and contractors who work for them as well as with service providers, that they as well shall refrain from any exploitation, disclosure or unauthorized recording of such business and trade secrets for the duration of five years from delivery.

16. Data Protection

  1. The parties shall be required to comply with all statutory data protection provisions, in particular the General Data Protection Regulation of the EU ("GDPR") in the performance of this contract and ensure that their employees comply with these provisions as well.
  2. The parties shall process any personal data they receive (the names and contact information of the respective contacts) exclusively in the fulfillment of the contract and shall protect these by taking security measures (Art. 32 GDPR) that correspond to the latest technology. The parties are required to erase the personal data as soon as its processing is no longer required. Any statutory retention obligation shall remain unaffected by the above.
  3. Should a party process personal data on behalf of the other party in the context of the execution of the contract, the parties shall enter into an agreement on the order processing pursuant to Art. 28 GDPR.

17. Final Provisions

  1. The Customer's rights and obligations may only be transferred to third parties with the prior written consent of the Hartmetall Company.
  2. Any counterclaims the Customer may have shall only entitle the Customer to offset these if they were upheld by a court of law or if they are undisputed. The Customer may only assert a right of retention if its counterclaim pertains to the same contractual relationship.
  3. The laws of the Federal Republic of Germany shall apply to all legal relationships between the Customer and the Hartmetall Company with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  4. If the Customer is a commercial entity as defined in the German Commercial Code, or a legal entity under public law or a public special asset, the exclusive place of jurisdiction for all disputes arising from the business relationship between the Hartmetall Company and the Customer shall be the seat of the Hartmetall Company. The Hartmetall Company shall also be entitled to file an action at the seat of the Customer as well as in any other legal jurisdiction. Any arbitration clause is hereby challenged.
  5. The place of fulfillment for all performance provided by the Customer and the Hartmetall Company shall be the seat of the Hartmetall Company unless something else was agreed upon.
  6. The contractual language is German.
  7. Should a provision of these General Terms and Conditions be or become wholly or partially invalid or unenforceable or should these General Terms and Conditions contain a loophole, the validity of the remaining provisions shall not be affected. A valid or enforceable provision shall be deemed as having replaced the invalid or unenforceable provision that comes closest to the purpose of the invalid or unenforceable provision. In the event of a loophole, the provision that corresponds to what would have been agreed on according to the purpose of these General Terms and Conditions if the parties had considered the matter from the start shall apply.
Amended on December 2019