General terms and conditions

General terms and conditions of sale and delivery of Heyer Aerotech GmbH

The basis of a lasting and permanent business relationship is cooperation and mutual trust. Our following terms and conditions of sale and delivery apply exclusively to all current and future business relationships. Heyer Aerotech GmbH does not recognise any conditions of the customer that conflict with or deviate from our terms and conditions of sale and delivery unless Heyer Aerotech GmbH has expressly agreed to their validity in writing. Our terms and conditions of sale and delivery also apply if Heyer Aerotech GmbH carries out the delivery without reservation in the knowledge of conflicting or deviating conditions of the customer. Entrepreneurs within the meaning of these terms and conditions of sale and delivery are natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity.

§ 1 Offer, offer documents

1. Our offers are subject to change and non-binding. An order is only concluded upon a corresponding order confirmation by Heyer Aerotech GmbH.
2. Specifications and qualities refer to the technical status at the time the contract is concluded. Heyer Aerotech GmbH is entitled to change specifications or qualities or to deviate from them, provided that the change or deviation is not fundamental and is reasonable for the customer.
3. Heyer Aerotech GmbH reserves property rights and copyrights to calculations and other documents. This also applies to written documents marked as “confidential”. The customer requires express written consent before passing them on to third parties.

§ 2 Prices

1. Our prices are net prices in EURO ex works, plus statutory VAT. VAT is shown separately. Delivery, transport, postage, insurance and packaging costs are charged and shown separately.
2. Heyer Aerotech GmbH reserves the right to increase prices for contracts with an agreed delivery time of more than four months in line with cost changes occurring after conclusion of the contract, in particular due to changes in freight, shipping and incidental shipping costs and increases in material prices. In the same way and to the same extent, we are obliged to reduce the price in the event of cost reductions.
3. Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. The statutory rules regarding the consequences of default in payment apply.
4. The deduction of a cash discount requires a special written agreement.

§ 3 Withdrawal

1. Heyer Aerotech GmbH is entitled to withdraw from the contract if – due to circumstances for which we are not responsible – our own purchase of the purchased item or parts thereof is not possible in accordance with the contract, or – the customer fails to perform despite a reminder.
2. Heyer Aerotech GmbH will inform the customer of the non-fulfilment without delay and will refund any consideration already received to the customer without delay.

§ 4 Set-off and rights of retention

The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed or have been acknowledged by us. The customer is only authorised to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.

§ 5 Delivery / transfer of risk

1. Delivery only takes place if it has been agreed separately. In this respect, all deliveries are made free kerbside.
2. Our goods must be inspected again upon delivery, but at the latest before installation/processing.
3. If the customer so wishes, the delivery will be covered by transport insurance; the customer shall bear the costs incurred in this respect.
4. Heyer Aerotech GmbH is entitled to make partial deliveries and render partial services at any time, provided this is reasonable for the customer.
5. If the goods are shipped to the customer at the customer’s request, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon dispatch to the customer, at the latest when the goods leave the warehouse / works. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.

§ 6 Delivery date

1. Delivery dates are exclusively non-binding information.
2. Delivery dates are subject to the timely and proper fulfilment of the customer’s obligations, in particular the clarification of all technical questions and the receipt of all necessary documents (permits, approvals, plans, drawings, etc.) which must be obtained by the customer. The defence of non-performance of the contract remains reserved.
3. If the customer is in default of acceptance or culpably breaches other obligations to cooperate, Heyer Aerotech GmbH is entitled to demand compensation for the resulting damage incurred by us, including any additional expenses. Further claims remain reserved. The customer, for their part, reserves the right to prove that no damage at all or significantly less damage than claimed has been incurred.
4. If the conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time the customer is in default of acceptance or debtor’s default.
5. Heyer Aerotech GmbH is liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of § 286 (2) No. 4 BGB or § 376 HGB. Heyer Aerotech GmbH is also liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the buyer is entitled to claim that their interest in further performance of the contract has ceased.
6. Heyer Aerotech GmbH is also liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage.
7. Heyer Aerotech GmbH is also liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; in this case, however, liability for damages is limited to the foreseeable, typically occurring damage.
8. Further statutory claims and rights of the customer due to a delay in delivery remain unaffected.

§ 7 Warranty and notice of defects

1. Claims for defects on the part of the customer presuppose that the customer has duly complied with their obligations to inspect and give notice of defects in accordance with § 377 HGB. Transport damage must be reported in writing without delay. Customary breakage and shrinkage cannot be objected to.
2. If the customer discovers a defect, they may not process, sell, etc. the purchased item until evidence has been secured or independent evidence proceedings have been carried out or an amicable settlement has been reached.
3. If the delivered item does not have the agreed quality or is not suitable for the use stipulated in the contract or for general use, or if it does not have the properties that the customer could expect on the basis of our public statements, Heyer Aerotech GmbH is obliged to provide subsequent performance. This does not apply if Heyer Aerotech GmbH is entitled to refuse subsequent performance on the basis of the statutory provisions.
4. The customer initially has the choice of whether subsequent performance is to be made by rectification or replacement delivery. However, Heyer Aerotech GmbH is entitled to refuse the type of subsequent performance chosen by the customer if it is only possible at disproportionate cost and the other type of subsequent performance remains without significant disadvantages for the customer. During subsequent performance, a reduction of the purchase price or withdrawal from the contract by the customer is excluded. Rectification is deemed to have failed after the second unsuccessful attempt, unless the nature of the item or the defect or other circumstances indicate otherwise. If subsequent performance has failed or Heyer Aerotech GmbH has refused subsequent performance altogether, the customer may, at their discretion, demand a reduction of the purchase price (reduction) or declare withdrawal from the contract.
5. The customer can only assert claims for damages due to the defect under the following conditions if subsequent performance has failed or Heyer Aerotech GmbH has refused subsequent performance. The customer’s right to assert further claims for damages remains unaffected.
6. Notwithstanding the above provisions and the following limitations of liability, Heyer Aerotech GmbH is liable without limitation for damage to life, body and health based on a negligent or intentional breach of duty by our legal representatives or our vicarious agents, as well as for damage covered by liability under the German Product Liability Act, and for all damage based on intentional or grossly negligent breaches of contract or fraudulent intent on the part of our legal representatives or our vicarious agents. If Heyer Aerotech GmbH has given a quality guarantee with regard to the goods or parts thereof, Heyer Aerotech GmbH is also liable within the scope of this guarantee. However, Heyer Aerotech GmbH is only liable for damage resulting from the absence of the guaranteed quality but not occurring directly on the goods if the risk of such damage is clearly covered by the quality guarantee.
7. Otherwise, Heyer Aerotech GmbH is only liable for a negligent breach of duty insofar as the damage is typically associated with the contract and foreseeable, whereby our liability is limited to compensation for the foreseeable, typically occurring damage.
8. Any further liability is excluded regardless of the legal nature of the claim asserted. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
9. The warranty period for claims for defects in used goods is 12 months from the transfer of risk and 24 months for new goods. Insofar as the law mandatorily prescribes longer periods in accordance with § 438 (1) No. 2 BGB (buildings and items for buildings), § 479 (1) BGB (right of recourse) and § 634a (1) BGB (construction defects), these periods apply.
10. The statutory limitation period applies to claims for damages in the event of intent and gross negligence and in the event of injury to life, body and health based on an intentional or negligent breach of duty by the user.

§ 8 Overall liability

1. Any liability for damages beyond that provided for in § 9 is excluded – regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, due to other breaches of duty or claims in tort for compensation for damage to property in accordance with § 823 BGB.
2. The limitation according to paragraph 1 also applies insofar as the customer demands compensation for futile expenses instead of a claim for compensation for damage instead of performance.
3. These limitations of liability do not apply to damage resulting from injury to life, body or health or in the event of a guarantee or the assumption of a procurement guarantee.
4. Claims for damages for liability under the mandatory provisions of the German Product Liability Act remain unaffected.

§ 9 Extended retention of title

1. Heyer Aerotech GmbH retains title to the purchased item until receipt of all payments (purchase price, transport fee, default interest, other damage caused by default, etc.) arising from the existing business relationship with the customer. In the event of conduct by the customer in breach of contract, in particular default in payment, Heyer Aerotech GmbH is entitled to take back the purchased item and to enter the customer’s premises for this purpose. The customer hereby consents to this. This does not constitute a withdrawal from the contract unless Heyer Aerotech GmbH has expressly declared this in writing. The seizure of the purchased item by us always constitutes a withdrawal from the contract. After taking back the purchased item, Heyer Aerotech GmbH is authorised to sell it; the proceeds of the sale shall be offset against the customer’s liabilities less reasonable costs of sale. Taking back the purchased item by us constitutes a withdrawal from the contract.
2. The customer is obliged to treat the purchased item with care; in particular, they are obliged to adequately insure it at their own expense against fire, water and theft damage at replacement value. If storage, maintenance and/or inspection work is required, the customer must carry this out in good time at their own expense.
3. In the event of seizures or other interventions by third parties, the customer must notify us immediately in text form so that Heyer Aerotech GmbH can file an action in accordance with § 771 ZPO. If the third party is unable to reimburse us for the judicial and extrajudicial costs of an action in accordance with § 771 ZPO, the customer is liable for the loss incurred by us.
4. The customer is entitled to resell the purchased item in the ordinary course of business; however, they hereby assign to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to them from the resale against their customers or third parties, regardless of whether the purchased item has been resold without or after processing. Heyer Aerotech GmbH hereby accepts the assignment. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, Heyer Aerotech GmbH undertakes not to collect the claim as long as the customer meets their payment obligations from the proceeds collected, is not in default of payment and, in particular, no application has been filed for the opening of composition or insolvency proceedings or for the implementation of out-of-court settlement proceedings with creditors regarding debt settlement (§ 305 (1) No. 1 InsO) and there is no suspension of payments. If this is the case, however, Heyer Aerotech GmbH can demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
5. The processing or transformation of the purchased item by the customer is always carried out on our behalf. If the purchased item is processed with other items not belonging to us, Heyer Aerotech GmbH acquires co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the item created by processing as to the purchased item delivered subject to retention of title.
6. If the purchased item is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is deemed agreed that the customer transfers proportionate co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us free of charge.
7. The customer also assigns to us the claims against third parties which arise from the connection of the purchased item with a property. Heyer Aerotech GmbH accepts the assignment.
8. If goods subject to retention of title are installed by the customer as an essential component in their own property, the customer hereby assigns the claims arising from the commercial sale of the property or of property rights in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the remainder. Heyer Aerotech GmbH accepts the assignment.

§ 10 Federal Data Protection Act, EU General Data Protection Regulation

Heyer Aerotech GmbH collects, processes and uses customer data in accordance with the provisions of the German Federal Data Protection Act and the EU General Data Protection Regulation. The data required for business transactions is stored and passed on to suppliers and service providers commissioned by us to the extent necessary for order processing.

§ 11 Place of jurisdiction, place of performance, applicable law

1. This contract and all legal relations between the parties are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. If the customer is a merchant, our registered office is the place of jurisdiction for all disputes arising from this contract; however, we are also entitled to sue the customer at the court of their place of business or residence.
3. Unless otherwise stated in the order confirmation, our registered office is the place of performance.

As of: October 2018