General Terms and Conditions of Keil Profi-Werkzeuge
valid from: 01.10.2021
1. Our deliveries and services are provided exclusively on the basis of the following terms and conditions. The General Terms and Conditions shall also apply to all future contracts and transactions with the partner.
2. The buyer's terms and conditions which are not expressly recognised by us shall not be valid.
General terms and conditions
3. Contracts are concluded when we expressly accept the order or send the ordered goods.
4. The information and illustrations contained in brochures and catalogues are approximate values customary in the industry, unless we have expressly designated them as binding. We reserve the right to make changes insofar as they do not unreasonably impair the intended use
Long-term and call-off contracts, price adjustment
5. Unlimited contracts may be terminated with six months' notice.
6. If, in the case of long-term contracts (contracts with a term of more than twelve months and unlimited contracts), there is a significant change in wage, material or energy costs, each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.
7. Unless otherwise agreed, delivery within Germany shall be made by parcel service. Outside Germany, the respective individual agreements on the form of dispatch shall apply.
8. The risk shall pass to the buyer upon handover to the railway, the forwarding agent or the carrier or upon commencement of storage, at the latest, however, upon leaving the factory or warehouse, even if we have assumed responsibility for delivery.
9. The minimum order value per delivery is EUR 250 (net without VAT).
10. In the case of partial deliveries, the total order value shall be the reference value. No shipping costs shall be charged for subsequent deliveries for which we are responsible.
11. Production-related excess or short deliveries are permissible within a tolerance of +/- five percent of the total order quantity. The total price shall change in accordance with their scope.
12. Goods with an order value of more than EUR 250 (net without VAT) will be delivered carriage paid within Germany. If in individual cases orders < EUR 250 (net without VAT) have been accepted, the following regulations shall apply:
Order value net without turnover tax
Flat-rate delivery charge
150.00 to 249.99
100.00 to 149.99
up to 99.99
13. Returns of goods of any kind must always be notified in writing before dispatch and released by Heller Tools GmbH. The goods are to be sent free of charge by the buyer. In the case of unfree returns and returns which have not been notified and released in writing in advance, we reserve the right to refuse acceptance and to invoice the costs incurred by us. Returned goods without defects will only be accepted in exceptional cases and after consultation, subject to a processing fee of 10% of the net value of the goods. As a matter of principle, returns of third-party goods will not be accepted.
14. Our prices are in euros plus value added tax. Exceptions are regulated via a separately agreed price list.
Terms of payment
15. All invoices are due immediately and without deductions upon invoicing, unless otherwise agreed in writing. The retention of payments or offsetting against any counterclaims of the customer disputed by us is not permitted.
16. If we declare ourselves willing to accept bills of exchange, cheques or assignments of claims, acceptance shall only be on account of payment and not in lieu of performance. The costs of discounting for bills of exchange and of collection shall be borne by the customer. A guarantee for the timely presentation of bills of exchange and cheques and for the lodging of bill protests is excluded.
17. If it becomes apparent after conclusion of the contract that our claim for payment is endangered by the buyer's inability to pay, we may refuse performance, withhold deliveries not yet made and set the buyer a reasonable period of time in which he must pay concurrently against delivery or provide security. In the event of refusal by the buyer or unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract and to demand compensation for damages.
18. Payments must be made as agreed. In the event of default in payment, we shall be entitled to charge default interest at the respective statutory rate pursuant to §§ 288 para. 2, 247 BGB (currently 8 percentage points above the respective base interest rate). The assertion of further damage caused by default remains unaffected.
19. In the event of default in payment, we may, after written notice to the buyer, suspend the performance of our obligations until the payments have been received.
20. Our commercial agents do not have any authority to collect payments.
Reservation of title
21. We reserve title to the delivered goods until all claims, including future claims, arising from the business relationship with the buyer have been settled.
22. The buyer is entitled to sell these goods in the ordinary course of business as long as he meets his obligations from the business relationship with us in due time. However, he may neither pledge the reserved goods nor assign them as security. He shall be obliged to secure our rights in the event of a credited resale of the reserved goods.
23. In the event of default in payment on the part of the buyer, we shall be entitled, after setting a reasonable period of grace, to demand the surrender of the reserved goods at the buyer's expense, even without rescission. The buyer already now entitles us to enter his premises and collect the delivered goods. The taking back of the goods or the assertion of the reservation of title and our seizure of the goods shall only constitute a rescission of the contract if we expressly declare this. We are entitled to withdraw from the contract if an application is made to open insolvency proceedings against the buyer's assets.
24. We shall be entitled to revoke the authorisations to resell and collect the assigned claims if the partner fails to meet its payment obligations from the proceeds collected, defaults in payment, an application is made to open insolvency proceedings or payments are suspended. If this is the case, the partner shall be obliged, at our request, upon revocation of the collection authorisation, to notify us of the assigned claims and their debtors, to notify the debtors of the assignment, to provide all information necessary for us to collect the claims and to surrender documents.
25. All claims and rights arising from the sale or, if applicable, the leasing of goods to which the buyer is entitled and to which we have property rights, are hereby assigned by the buyer to us by way of security. We hereby accept the assignment.
26. If our goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, the buyer shall transfer co-ownership to us on a pro rata basis insofar as the main object belongs to him. The buyer shall hold the ownership or co-ownership in safe custody for us.
27. The buyer shall inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for an intervention. This shall also apply to impairments of any other kind.
28. We shall release the securities to which we are entitled in accordance with the above provisions at the buyer's request insofar as the value of the goods delivered under retention of title exceeds the claims to be secured by more than 20 percent.
29. If the goods sold are brought into the territory of another state, the partner is obliged to ensure at its own expense before the start of the delivery that the legal system of the state into which the goods are brought knows a retention of title comparable to the above provisions. In this respect, the partner is obliged to perform all actions, take all measures and carry out all registrations which are necessary and feasible in order to secure our ownership rights to the goods sold. To this end, we undertake to support the partner with all legally required actions and to provide the partner with the necessary information in writing and to make the corresponding documents available. The partner shall be liable to us for any damage incurred as a result of the fact that there is no sufficient security for our title to the goods sold or that the retention of title under the above provisions is not recognised in whole or in part by the law of the country to which the goods sold have been transferred.
30. The quality of the goods shall be exclusively determined by the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our buyer, the buyer shall assume the risk of suitability for the intended use. The decisive factor for the contractual condition of the goods is the time of the transfer of risk in accordance with Clause 8.
31. We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the buyer or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the buyer or third parties without our consent. The same applies to defects which only insignificantly reduce the value or the suitability of the goods.
32. Claims based on material defects shall become statute-barred after twelve months. This shall not apply if longer periods are prescribed by law.
33. If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the buyer could have detected in the course of a careful acceptance or initial sample inspection shall be excluded.
34. We must be given the opportunity to determine the defect complained of. Goods which are the subject of a complaint must be returned to us immediately on request; we shall bear the transport costs if the complaint is justified. If the buyer does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.
35. In the event of a justified notice of defect in due time pursuant to § 377 HGB (German Commercial Code), we shall, at our discretion, either repair the defective goods or deliver a faultless replacement. A repair or the delivery of a faultless replacement shall not be carried out if the notification of the defect in the case of obvious defects is notified to us later than two calendar weeks after receipt of the goods. In the case of a hidden defect, this must be reported within two calendar weeks of recognition at the latest. Open or hidden defects reported later will not be accepted.
36. If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable period of time, the buyer may set us a final deadline in writing within which we must fulfil our obligations. After the unsuccessful expiry of this period, the buyer may demand a reduction of the price, withdraw from the contract or have the necessary rectification carried out himself or by a third party at our expense and risk. If the rectification was successfully carried out by the buyer or a third party, all claims of the buyer shall be settled with reimbursement of the necessary costs incurred by him. Reimbursement of costs is excluded insofar as the expenses increase because the goods have been taken to another location after our delivery, unless this is in accordance with the intended use of the goods.
37. The buyer's statutory rights of recourse against us shall only exist insofar as the buyer has not made any agreements with his customer which go beyond the statutory claims for defects. Furthermore, the last sentence of Clause 35 shall apply accordingly to the scope of the rights of recourse.
Other claims and liability
38. Unless otherwise stated below, other and further claims of the buyer against us are excluded. This applies in particular to claims for damages due to breach of obligations arising from the contractual obligation and from tort. We shall therefore not be liable for damage that has not occurred to the delivered goods themselves. In particular, we shall not be liable for loss of profit or other financial losses of the buyer.
39. The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or senior employees or culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, we shall be liable - except in cases of intent or gross negligence on the part of our legal representatives or executives - only for reasonably foreseeable damage typical for the contract.
40. The limitation of liability shall furthermore not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, limb or health and in the absence of warranted characteristics if and to the extent that the purpose of the warranty was precisely to protect the buyer against damage that did not occur to the delivered goods themselves.
41. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
42. The statutory provisions on the burden of proof shall remain unaffected.
43. Force majeure, industrial disputes, unrest, official measures, failure of our suppliers to deliver and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This also applies if these events occur at a time when the affected contractual partner is in default. The contracting parties are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
Place of performance, place of jurisdiction and applicable law
44. Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
45. The competent court at our place of business shall be the place of jurisdiction for all legal disputes, also within the scope of a bill of exchange and cheque process. We are also entitled to take legal action at the buyer's place of business.
46. The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship. It is also expressly agreed with customers outside Germany that German law shall apply in the event of disputes and that the competent court at our place of business shall have jurisdiction.
The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG - "Vienna Sales Convention") is excluded.