Terms of Service

Terms of Service

of the HellbergForm, Owner Andreas Hellberg, Friedrich-Ebert-Straße 61, 34119 Kassel

§ 1 General

(1) Our General Terms and Conditions of Sale set out below shall form part of any agreement concluded with us for commercial transactions and undertakings. These Terms and Conditions shall apply in accordance with the most recent version and all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.

(2) We hereby object to any counter confirmation, counter offer or other reference by the Customer to its own general terms and conditions. The Customer’s own terms and conditions shall only apply if we have confirmed the same in writing.

§ 2 Offers; Orders

(1) Our offers shall not be binding; unless we have agreed on a commitment period for the offer.

(2) Orders placed by the Customer shall not be regarded as accepted before they have been confirmed by us in writing (e.g. by email). If we should fail to confirm in writing an agreement which we have entered into verbally or in a telephone conversation, then our invoice shall be regarded as confirmation.

(3) Documents such as illustrations, drawings, weight and measurement details which form part of the offer are only roughly authoritative; unless expressly described as obligatory.

(4) Any changes require our written approval. The Customer will bear the additional costs caused by such changes.

§ 3 Prices and Payment

(1) Our prices are in Euro and shall exclude any statutory VAT which shall be payable at the date of delivery.

(2) In principle, payments are due in Euro within 30 days. The Customer shall pay all bank charges incurred for international transfers.

(3) Unless agreed otherwise, the Customer shall make the payment in case of product orders as follows: 50% of the selling price upon order confirmation, 30% at indication of the dispatch readiness, 20% at acceptance or at the latest 1 month after delivery. Repair invoices
are payable in full.

(4) Advice and planning for product design prior to ordering a product can be billed separately in accordance with our price list and will be deducted when ordering a product.

(5) We are entitled to demand from the Customer, even after the confirmation of an order, a bank guarantee of a financial institution located within the European Union to provide security for our pecuniary claims. Every order confirmation is subject to the reservation that such a bank guarantee is put in place at the Customer’s expense. If the financial circumstances of the Customer deteriorate to such an extent that our claims for payment are endangered, delivery can be refused until the invoice amount is paid. AII demands immediately fall due if the Customer ceases to make payments or upon the commencement of composition settlement negotiations or insolvency proceedings regarding the Customer.

(6) If the invoice amount is overdue then we are entitled, without the need for a separate warning notice, to recover default interest in a proven amount but in any event an amount equalling 8% above the base rate of the European Central Bank. Further damages claims
remain unaffected.

(7) If, as result of a change of law between the agreement date and the delivery date, additional or increased charges – in particular duties, levies, currency compensation payments, shall be payable, then we shall have the right to increase the purchase price accordingly.

(8) In case of travel expenses, we will provide a separate invoice for travel expenses, time spent travelling, accommodation, catering and other expenditures. Travelling time will be charged according to our hourly rates. In case of repair orders outside the warranty, the Customer bears the travelling expenses even if it turns out that there is no defect.

(9) In case of early termination, we may – regardless of the assertion of a right to further compensation – charge a cancellation fee of 10% until the end of the planning phase, of 50% after the production work has begun and of 70% of the order value after the surface design has begun, unless the Customer can prove a lower expense or damage.

(10) The Customer shall have no right to set off, retention or reduction unless the underlying counterclaims have been conclusively determined by a court or expressly acknowledged by us.

§ 4 Shipment and Delivery

(1) Our prices are correct ex works, unless otherwise agreed. The Customer bears the costs of freight and packing. Transportation of the goods shall be at the risk of the Customer. Any transport insurance shall be provided only upon express demand of the Customer.

(2) The selection of the place of dispatch, the transport route and the means of transport shall, unless otherwise agreed, be subject to our reasonable discretion and be without the assumption of any responsibility on our part to choose the cheapest and fastest transport.

(3) As regards any obligation under the packaging regulation to take back the packaging used for transportation, the Customer bears the transportation costs for returning the used packing and the reasonable costs of its utilization. Where it is considered possible and useful for us to reuse the packaging, the Customer will bear any reasonable additional costs which arise in such a reuse of the packaging.

(4) Unless otherwise expressly agreed in writing, any indicated time of delivery or unloading shall be non-binding. The delivery period shall start with the date of the order confirmation; not before the Customer has provided the requested product drawings, approvals and
before receipt of an agreed down payment.

(5) The Customer has to provide to us a sample delivery of the production tool at the latest 3 weeks (21 days) prior to the end of the delivery period for our function test. The sample delivery must include at least three times the machine capacity of sample parts. If the
Customer fails to provide the sample delivery in due time, our delivery time will be delayed accordingly.

In case of deviations between the obligatory sample and the productions parts which lead to a modification of the machine design, the Customer shall bear the additional costs arising from the modification and be held liable for delayed delivery.

(6) Our delivery obligation shall at all times be subject to timely and orderly receipt of the goods from our own suppliers.

(7) If the dispatch is delayed at the request of the Customer, the Customer will be charged storage costs, commencing from the notice of dispatch readiness, of at least 0.5% of the value of the goods for every month. In this case, the delivery item will be invoiced at dispatch
readiness.

(8) Any inability to supply as result of force majeure/acts of God or other unforeseen incidents outside our responsibility including, but not limited to, strike, lock out, acts of public authorities, subsequent impossibility to export or import and our reservation of timely
supply from our own suppliers shall, for their duration and in accordance with their impact, relieve us from the obligation to comply with any agreed time for delivery and unloading.

(9) If we are unable to meet the agreed delivery time, we shall be entitled to extend the delivery time by notice up to 3 months. If any agreed time of delivery or unloading is exceeded, then the Customer must allow us a reasonable period of at least two weeks to
rectify the situation. If we should also fail to meet this deadline, then the Customer shall have the right to rescind the agreement but shall have no right to seek compensation for breach of contract or default except in a case of wilful misconduct or gross negligence on our part.

§ 5 Risk of Loss and Acceptance

(1) The risk of loss will transfer to Customer upon the dispatch to the customer. This also applies if we undertake delivery and installation.

(2) If the dispatch or the acceptance is delayed by circumstances which are the responsibility of the Customer, then the risk of loss will transfer to Customer from the day of the dispatch readiness.

(3) In case of a work performance, the acceptance shall be carried out following the notice of the dispatch and acceptance readiness of the delivery item at HellbergForm. If the Customer waives the acceptance, the delivery item shall be deemed to be accepted. If the Customer does not announce readiness for the acceptance test within three days, or does not object to any essential defects in writing within 10 days following the dispatch and acceptance readiness, the delivery item shall be deemed to be accepted.

(4) The acceptance can be refused only because of material defects; insignificant defects are subject to the warranty rights.

§ 6 Duty to Inspection and Objection

(1) The Customer shall inspect the contractual conformity of the delivered products immediately upon receipt and record any defects discovered on the delivery note or consignment note or receipt of delivery and notify us in writing without delay, at the latest within 10 days. Defects discovered later must also be reported to us immediately.

(2) The type and scope of the alleged defect must be clearly stated is the complaint. The Customer is obliged to keep the rejected goods available at the place of inspection for inspection by us, our suppliers or experts commissioned by us. Goods that have not been rejected in due form and time shall be deemed to have been approved and accepted.

§ 7 Retention of Title

(1) We shall retain full title of the goods that have been delivered until the Customer has discharged all claims arising from the business relationship. The Customer shall have the right to use of the goods delivered by us within the ordinary course of business.

(2) In the event of any third-party action against our goods delivered under retention of title, the Customer shall notify such party of our property/our right and immediately inform us about such action. The Customer shall bear the costs of any intervention.

(3) Should the Customer be in Breach of contract, in particular in default regarding payment, then it shall, upon our demand, immediately return to us all goods delivered under retention of title and assign to us any repossession claims against any third party in conjunction with such goods. Any repossession or enforcement proceedings with regard to the goods delivered under retention of title shall not be regarded as a rescission of this agreement.

§ 8 Confidentiality

(1) Both parties will treat confidential information received from the other party as confidential and use it only in the context of the order relationship. AII information is to be deemed confidential once it is marked as „confidential“ or is confidential by its nature.

(2) Please be aware that our proposal documents are confidential and may not be disclosed to third parties without our express written permission.

§ 9 Warranty

(1) The composition and/or use of the product are specified in product descriptions. Modifications or special agreements must be made in writing. Other documents and statements are irrelevant. The Customer may not claim a defect if the composition and/or use of the product are only insignificantly impaired.

(2) Upon justified objections regarding defects of the goods, the Customer shall have the right to claim an adequate reduction in the purchase price, without prejudice to our right to provide the return or repair of the defective goods. In cases of a claim under a warranty, the product must be provided to us in our business location.

(3) Upon repair, the warranty rights shall be limited to the repair regarding the defect.

(4) The warranty rights shall not apply in case of improper use, consumption material and as far as the Customer undertakes changes to the product not authorized in writing by us unless the Customer proves that the respective defect was not caused by the change and that the repairing of defects is not aggravated by the change.

(5) The Customer shall not be entitled to any further rights or remedies. In particular, we shall not be responsible for any compensation based on breach of contract or default unless the goods lack a characteristic that we have expressly guaranteed in writing or in case of wilful misconduct or gross negligence on our part.

(6) The warranty period shall be for 90 days from delivery.

§ 10 Limitation of Liability

(1) Subject to the provisions in the following sub-sections, HellbergForm shall only be liable, irrespective of the legal grounds, for damage caused by the intentional or grossly negligent conduct, personal damages, guaranties and according to the Product Liability Act. In case of
damage caused by ordinary negligent conduct, liability shall be limited to damages caused by the violation of a cardinal obligation and which must typically be expected within the framework of the agreement.

(2) HellbergForm’s liability – except for intent – shall be limited to the amount of EUR 10,000. Damages for loss of profit and other indirect and consequential damages shall be excluded.

(3) The liability regime shall also apply to the benefit of HellbergFonn’s employees in the event that the Customer files any claims directly against them.

§ 11 Final Provisions

(1) The Customer may not assign any rights and obligations under this agreement without our prior written approval. We may assign claims without Customer’s approval.

(2) The place of performance for deliveries shall be the business place of HellbergForm.

(3) For our benefit, the courts of Kassel shall have jurisdiction over all disputes arising from this Agreement. However, we may also select a different place of jurisdiction.

(4) Amendments, supplements and notices of termination of this agreement must be made in writing; this requirement applies also to this written form requirement.

(5) This Agreement, and all orders hereunder, shall be governed by the laws of the Federal Republic of Germany excluding the EU conflicts of law (Rome 1) and the UN Convention on the International Sale of Goods (CISG).

(6) The invalidity of any provision shall not affect the validity of other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible. The
same shall apply in case of contractual gaps.

HellbergForm 01/2018