Terms of service

Heeb Systemtechnik Dietmar Heeb

I. General Provisions

1. The scope of deliveries or services (hereinafter: "deliveries") shall be determined by the written declarations made by both parties. General terms and conditions of the purchaser shall apply only if and to the extent that the supplier or service provider (hereinafter: "supplier") has expressly agreed to them in writing.

2. The supplier retains full ownership and copyright exploitation rights regarding cost estimates, drawings, and other documents (hereinafter: "documents"). Such documents may only be made accessible to third parties with the prior consent of the supplier and must be returned to the supplier immediately upon request if the order is not placed with the supplier. The first and second sentences shall apply mutatis mutandis to documents provided by the purchaser; however, such documents may be made accessible to third parties to whom the supplier has permissibly subcontracted parts of the delivery.

3. Regarding standard software, the purchaser is granted a non-exclusive right to use the software—with its agreed-upon performance features and in its unaltered form—on the agreed-upon equipment. The purchaser is permitted to create a backup copy, provided no express agreement to the contrary exists.

4. Partial deliveries are permissible, provided they are reasonable for the purchaser to accept.

 

II. Prices and Terms of Payment

1. Prices are ex works, excluding packaging, and are subject to the applicable statutory value-added tax (VAT).

2. If the supplier has undertaken the setup or assembly, and unless otherwise agreed, the purchaser shall bear—in addition to the agreed remuneration—all necessary incidental costs, such as travel expenses, costs for the transport of tools and personal luggage, and per diems/allowances.

3. Payments must be made to the supplier’s designated payment office. 4. The customer may only offset claims that are undisputed or have been established by a final, non-appealable court judgment.

 

III. Retention of Title

1. The items supplied (goods subject to retention of title) shall remain the property of the supplier until all claims to which the supplier is entitled against the customer arising from the business relationship have been satisfied. If the value of all security interests held by the supplier exceeds the total amount of the secured claims by more than 20%, the supplier shall, at the customer’s request, release a corresponding portion of the security interests.

2. As long as the retention of title is in effect, the customer is prohibited from pledging the goods or transferring them by way of security. Resale is permitted only to resellers in the ordinary course of business, and only on the condition that the reseller either receives payment from their own customer or stipulates that ownership shall not pass to said customer until the latter has fulfilled their payment obligations.

3. In the event of attachments, seizures, or other dispositions or interventions by third parties, the customer must notify the supplier immediately.

4. In the event of a breach of duty by the customer—in particular, in the event of a delay in payment—the supplier shall be entitled to rescind the contract and reclaim the goods, provided that a reasonable grace period set for the customer to perform their obligations has expired without success; statutory provisions regarding cases where setting a grace period is unnecessary shall remain unaffected. The customer is obligated to surrender the goods.

 

IV. Delivery Periods; Delay

1. Compliance with delivery deadlines is contingent upon the timely receipt of all documents, necessary permits, and approvals to be provided by the purchaser — specifically including plans — as well as the purchaser’s adherence to agreed-upon payment terms and other obligations. If these requirements are not met in a timely manner, the deadlines shall be extended accordingly; this does not apply if the supplier is responsible for the delay.

2. If the failure to meet deadlines is attributable to *force majeure*—such as mobilization, war, or civil unrest—or to similar events, such as strikes or lockouts, the deadlines shall be extended accordingly.

3. Should the supplier fall into delay, the purchaser—provided they can demonstrate that they have incurred damages as a result—may claim compensation for each completed week of delay, amounting to 0.5% per week, up to a maximum total of 2.5% of the price for that portion of the delivery which could not be put into intended operation due to the delay.

4. Any claims for damages by the purchaser due to a delay in delivery, as well as claims for damages in lieu of performance that exceed the limits specified in Section 3, are excluded in all cases of delayed delivery—even after the expiry of any grace period for delivery that may have been granted to the supplier. This exclusion does not apply in cases of intent, gross negligence, or liability for injury to life, body, or health, where such liability is mandatory by law. The customer may rescind the contract—within the scope of statutory provisions—only if the delay in delivery is attributable to the supplier. These provisions do not entail any shift in the burden of proof to the detriment of the customer.

5. Upon the supplier’s request, the customer is obligated to declare, within a reasonable period, whether they intend to rescind the contract due to the delay in delivery or whether they insist upon delivery.

6. If shipment or delivery is delayed by more than one month after notification of readiness for dispatch at the customer’s request, the customer may be charged a storage fee of 0.5% of the price of the items to be delivered for each month or part thereof, up to a maximum total of 5%. Both contracting parties reserve the right to provide evidence of higher or lower storage costs.

 

V. Transfer of Risk

1. Risk shall pass to the customer—even in the case of carriage-paid delivery—as follows:

a) In the case of deliveries without installation or assembly, when the items are dispatched or collected. At the customer’s request and expense, the supplier shall insure the delivery against standard transport risks;

b) In the case of deliveries involving installation or assembly, upon acceptance into the customer’s own operations or, if agreed, following a successful trial run.

2. If the dispatch, delivery, commencement or execution of installation or assembly, acceptance into the customer’s own operations, or the trial run is delayed for reasons attributable to the customer, or if the customer otherwise falls into default of acceptance, the risk shall pass to the customer.

 

VI. Installation and Assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:

1. The customer shall, at their own expense, provide the following in a timely manner:

a) all earthworks, construction work, and other ancillary work outside the scope of the supplier’s trade, including the necessary skilled and unskilled labor, construction materials, and tools;

b) the equipment and materials required for installation and commissioning, such as scaffolding, lifting gear and other devices, fuels, and lubricants;

c) energy and water at the site of use, including the necessary connections, heating, and lighting;

d) sufficiently large, suitable, dry, and lockable rooms at the installation site for the storage of machine parts, equipment, materials, tools, etc., as well as appropriate work and break rooms for the installation personnel, including sanitary facilities suitable for the circumstances; furthermore, the customer shall take the same measures to protect the property of the supplier and the installation personnel at the site as they would take to protect their own property;

e) protective clothing and safety equipment required due to the specific conditions at the installation site.

2. Before installation work begins, the customer must, without being prompted, provide the necessary information regarding the location of concealed power, gas, or water lines—or similar installations—as well as the required structural/static data.

3. Before installation or assembly begins, all items and provisions required to commence the work must be present at the installation or assembly site. Furthermore, all preparatory work must have progressed to a stage that allows installation or assembly to begin as agreed and to be carried out without interruption. Access routes and the site designated for setup or assembly must be leveled and cleared.

4. If the setup, assembly, or commissioning is delayed due to circumstances for which the supplier is not responsible, the customer shall bear the costs for any waiting time and any additional travel required by the supplier or the assembly personnel, to a reasonable extent.

5. The customer shall provide the supplier with a weekly record of the working hours logged by the assembly personnel and shall promptly confirm the completion of the setup, assembly, or commissioning.

6. If the supplier requests formal acceptance of the delivery upon completion, the customer shall carry out such acceptance within two weeks. If the customer fails to do so, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery—following the conclusion of any agreed-upon test phase, if applicable—is put into use.

 

VII. Receipt

The customer may not refuse to accept deliveries due to minor defects.

 

VIII. Material Defects

The supplier’s liability for material defects is as follows:

1. At the supplier’s discretion, any parts or services that exhibit a material defect within the limitation period—regardless of the duration of operation—shall be repaired, replaced, or re-performed free of charge, provided that the cause of the defect already existed at the time the risk passed to the customer.

2. Claims for material defects shall be time-barred after 12 months. This does not apply where the law prescribes longer periods pursuant to Sections 438 (1) no. 2 (structures and items used for structures), 479 (1) (right of recourse), and 634a (1) no. 2 (construction defects) of the German Civil Code (BGB), nor in cases involving injury to life, body, or health, in the event of an intentional or grossly negligent breach of duty by the supplier, or in the event of the fraudulent concealment of a defect. The statutory provisions regarding the suspension of the limitation period, the interruption of the limitation period, and the recommencement of limitation periods remain unaffected.

3. The purchaser must notify the supplier of any material defects in writing without undue delay.

4. In the event of a notice of defect, the purchaser may withhold payments only to an extent that is in reasonable proportion to the material defects that have occurred. The purchaser may only withhold payments if a notice of defect is asserted that is indisputably justified. If a notice of defect is found to be unjustified, the supplier shall be entitled to demand reimbursement from the purchaser for any expenses incurred.

5. The supplier must first be given the opportunity to provide subsequent performance (remedy) within a reasonable period of time.

6. If subsequent performance fails, the purchaser may—without prejudice to any claims for damages under Article XI—rescind the contract or reduce the remuneration. 7. Claims for defects shall not exist in the case of an insignificant deviation from the agreed quality, an insignificant impairment of usability, natural wear and tear, or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, an unsuitable building site, or particular external influences not contemplated under the contract; the same applies to non-reproducible software errors. Furthermore, no claims for defects shall exist in relation to any improper modifications or repair work carried out by the customer or third parties, nor for the consequences resulting therefrom.

8. Claims by the customer for expenses incurred for the purpose of supplementary performance—specifically transport, travel, labor, and material costs—are excluded to the extent that such expenses increase because the delivered item was subsequently moved to a location other than the customer’s place of business, unless such relocation is consistent with the item’s intended use.

9. Recourse claims by the customer against the supplier pursuant to Section 478 of the German Civil Code (BGB) (recourse of the entrepreneur) shall exist only to the extent that the customer has not entered into any agreements with their own buyer that go beyond the statutory claims for defects. Furthermore, the provisions of Section 8 shall apply accordingly to the scope of the customer’s recourse claim against the supplier under Section 478, paragraph 2, of the German Civil Code (BGB).

10. In all other respects, Article XI (Other Claims for Damages) shall apply to claims for damages. Any claims by the customer against the supplier and their vicarious agents arising from a material defect that go beyond or differ from those stipulated in this Article VIII are excluded.

IX. Intellectual Property Rights and Copyrights; Legal Defects

1. Unless otherwise agreed, the supplier is obligated to ensure that the delivery is free from third-party intellectual property rights and copyrights (hereinafter: "Intellectual Property Rights") only in the country where the place of delivery is located. If a third party asserts legitimate claims against the customer due to an infringement of Intellectual Property Rights by deliveries provided by the supplier and used in accordance with the contract, the supplier shall be liable to the customer within the period specified in Article VIII, Section 2, as follows:

a) At their own discretion and expense, the supplier shall either obtain a right of use for the relevant deliveries, modify them so that the Intellectual Property Right is no longer infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the customer shall be entitled to their statutory rights of rescission or reduction of the purchase price.

b) The supplier’s obligation to pay damages shall be governed by Article XI. c) The aforementioned obligations of the supplier shall apply only if the purchaser notifies the supplier immediately in writing of any claims asserted by a third party, does not acknowledge any infringement, and leaves all defense measures and settlement negotiations to the supplier. If the purchaser ceases use of the supplied goods for the purpose of mitigating damages or for other important reasons, the purchaser is obliged to inform the third party that such cessation of use does not constitute an acknowledgment of an infringement of intellectual property rights.

2. Claims by the purchaser are excluded to the extent that the purchaser is responsible for the infringement of intellectual property rights.

3. Furthermore, claims by the purchaser are excluded if the infringement of intellectual property rights is caused by specific instructions from the purchaser, by an application not foreseeable by the supplier, or by the fact that the supplied goods have been modified by the purchaser or used in conjunction with products not supplied by the supplier.

4. In the event of an infringement of intellectual property rights, the provisions of Art. VIII, paragraphs 4, 5, and 9 shall apply mutatis mutandis to the purchaser’s claims as set forth in paragraph 1(a).

5. In the event of other legal defects, the provisions of Art. VIII shall apply mutatis mutandis.

6. Any claims by the purchaser against the supplier or its agents arising from a legal defect, other than or in addition to those provided for in this Art. IX, are excluded.

 

X. Impossibility; Adjustment of the Contract

1. In the event that delivery becomes impossible, the purchaser shall be entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the purchaser’s claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put to its intended use due to the impossibility. This limitation shall not apply in cases of intent, gross negligence, or liability for injury to life, body, or health; this provision does not entail a shift in the burden of proof to the detriment of the purchaser. The purchaser’s right to rescind the contract remains unaffected.

2. If unforeseeable events within the meaning of Art. IV No. 2 significantly alter the economic significance or the content of the delivery, or have a substantial impact on the supplier’s operations, the contract shall be adjusted appropriately in good faith. If such an adjustment is not economically justifiable, the supplier shall have the right to rescind the contract. Should the supplier wish to exercise this right of rescission, they must notify the purchaser immediately upon realizing the full extent of the event—even if an extension of the delivery period had previously been agreed upon with the purchaser.

 

XI. Other Claims for Damages

1. Claims for damages and reimbursement of expenses by the customer (hereinafter: claims for damages) — regardless of the legal basis, including, in particular, breach of obligations arising from the contractual relationship or from tort — are excluded.

2. This exclusion does not apply in cases of mandatory liability, such as under the Product Liability Act, in cases of intent or gross negligence, in the event of injury to life, body, or health, or due to the breach of essential contractual obligations. However, claims for damages resulting from the breach of essential contractual obligations are limited to the foreseeable damage typical for the contract, unless the breach is intentional or due to gross negligence, or involves injury to life, body, or health. These provisions do not entail a shift in the burden of proof to the detriment of the customer.

3. To the extent that the customer is entitled to claims for damages under this Art. XI, such claims shall become time-barred upon the expiration of the limitation period applicable to claims for material defects, as set forth in Art. VIII No. 2. For claims for damages under the Product Liability Act, the statutory limitation periods shall apply.

 

XII. Place of Jurisdiction and Applicable Law

1. If the customer is a merchant (*Kaufmann*), the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. The supplier shall, however, also be entitled to bring an action at the customer’s registered office. 2. The legal relationships in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

XIII. Binding Nature of the Contract

Should individual provisions of this contract be legally invalid, the remaining parts shall nonetheless remain binding. This shall not apply if adhering to the contract would constitute an unreasonable hardship for one of the parties. Based on the recommended terms and conditions of the German Electrical and Digital Industry Association (ZVEI).

 

XIV. Online Dispute Resolution

Information on online dispute resolution: The EU Commission has provided an internet platform for the online resolution of disputes (the "ODR platform"). The ODR platform serves as a point of contact for the out-of-court resolution of disputes arising from contractual obligations in online sales contracts.

The ODR platform can be accessed via the following link: http://ec.europa.eu/consumers/odr

– As of: January 2014 –