GENERAL TERMS AND CONDITIONS OF BUSINESS OF HEIGHT TECH GMBH & CO. KG
PART 1: SCOPE OF APPLICATION; CONCLUSION AND PERFORMANCE OF CONTRACTS
§ 1 Scope of application
- These General Terms and Conditions of Business (hereinafter referred to as “GTC”) shall apply for all contracts – with the exception of participation in training courses – that are concluded between HEIGHT TECH GmbH & Co. KG (hereinafter referred to as “HEIGHT TECH”) and its customers (hereinafter referred to as “Customer”) (hereinafter referred to collectively as “Parties”).
- HEIGHT TECH sells its products and provides services exclusively to customers who are not consumers within the meaning of Section 13 BGB [German Civil Code]. A contract is concluded only with a Customer who is not a consumer and where it is obvious to HEIGHT TECH that said Customer is not acting in this capacity.
- The HEIGHT TECH GTC shall apply exclusively. Any GTC of the Customer that differ from, are contrary to or supplement the HEIGHT TECH GTC shall not be acknowledged by HEIGHT TECH and are explicitly objected to. This shall also apply where HEIGHT TECH executes the order in awareness of the Customer’s GTC.
§ 2 Conclusion of the contract
- HEIGHT TECH shall provide the Customer at the latter’s request with a non-binding offer for the desired product or the desired service, including a detailed description of the product or service and the corresponding price (hereinafter referred to as “Non-Binding Offer”). On the basis of the Non-Binding Offer, the Customer shall submit a binding offer (hereinafter referred to as “Order Proposal”) for the order of a product or the commissioning of a service.
- The Order Proposal must be submitted in text form. Insofar as HEIGHT TECH has set up an electronic service system for submitting an Order Proposal, it shall suffice for the Customer to transmit the proposal through this system.
- HEIGHT TECH shall be entitled to accept the Order Proposal within ten (10) calendar days of receipt of the same by HEIGHT TECH; acceptance shall be granted likewise in text form by way of an order confirmation.
- Upon conclusion of the contract, any changes relating to the agreed product shall only be possible insofar as the Parties reach an agreement on the changes in accordance with clauses 1 to 3 above.
- With regard to the ordering of spare parts and other standard products that do not need to be adjusted to meet customer specifications, it shall suffice for the Customer to place the order in text or electronic form and for HEIGHT TECH to accept this order pursuant to clause 3 above.
§ 3 Duties of the Customer to cooperate
- The Customer shall cooperate in the requisite manner with the execution of the order.
- In good time prior to execution of the order, the Customer shall provide HEIGHT TECH, free of charge and at its own expense, with all information, materials, devices, documents, and processes, etc. necessary to execute the order. It shall grant HEIGHT TECH the usage rights necessary to fulfil the order.
- Where HEIGHT TECH performs the service on the Customer’s premises, the Customer shall also allow the employees of HEIGHT TECH, or third parties commissioned by it, during normal business hours and in line with the company’s access regulations, access to all rooms, installations (hardware, software, networks, etc.) and other work materials, which are necessary for the due and proper provision of the services by HEIGHT TECH.
- If the Customer does not fulfil the obligations incumbent on it pursuant to clauses 1 to 3 above, or fails to fulfil these on time, and if such action leads to delays in executing the order or to additional work and expense, HEIGHT TECH shall be entitled to charge the additional costs incurred as a result of this to the Customer.
§ 4 Payment by the Customer
- Subject to clauses 2 to 4 above, payment shall be due within fourteen (14) calendar days of delivery or provision of service and is payable without any further deduction, unless agreed otherwise with the Customer in individual cases. Where there are deviating agreements, the due date for payment shown on the invoice shall be decisive.
- If the Customer has commissioned HEIGHT TECH with the manufacture of a flight system, HEIGHT TECH shall not hand over the product to the Customer until the purchase price has been paid in full. The Customer shall be given the opportunity to check the product for any defects. If the manufactured flight system is to be sent to the Customer, HEIGHT TECH shall not dispatch the product until payment has been received pursuant to clause 5 above.
- Where HEIGHT TECH is commissioned to manufacture and deliver a flight system according to customer specification, 50 % of the purchase price shall be due for payment prior to commencement of production and shall be paid immediately upon issuance of an invoice. The Customer shall settle the remaining 50 % of the purchase price upon handover or, if the product is to be delivered, prior to delivery.
- With regard to repairs and maintenance, payment shall be due immediately upon performance of the due service and issuance of an invoice. Upon receipt of the items by HEIGHT TECH for repair, HEIGHT TECH shall acquire a statutory lien on the Customer’s items in accordance with Section 647 BGB and may retain possession of these after the due service has been performed until such time as payment has been made in full. In the event that the Customer fails to make payment, the lien entitles HEIGHT TECH to sell the repaired item for the purpose of satisfying its claim from the proceeds.
- Payment shall be deemed to have been made where the amount stated on the invoice has been credited to the business account of HEIGHT TECH.
- The Customer shall only be entitled to set-off rights and rights of retention to the extent that the claim on which such is based has been established with legally binding effect or is undisputed.
PART 2: SPECIAL PROVISIONS FOR SALES CONTRACTS
§ 5 Place of fulfilment; Delivery and shipping costs
- Place of fulfilment is the registered place of business of HEIGHT TECH as entered in the commercial register. The products shall be delivered solely upon the Customer’s request and at the Customer’s own risk. HEIGHT TECH shall not be liable for any accidental loss or accidental deterioration during transit. Insofar as the loss or deterioration is caused by the person responsible for transportation, HEIGHT TECH hereby assigns at this stage its rights vis-à-vis the person responsible for transportation to the Customer.
- HEIGHT TECH shall be entitled to determine the method of shipping unless agreed otherwise with the Customer in individual cases. All costs arising in connection with the shipping of the products to the registered place of business of the Customer shall be borne by the Customer. These costs include, in particular, the shipping costs charged by the person responsible for transportation, and packaging costs.
- If the Customer wishes the products to be delivered abroad, HEIGHT TECH shall check the existing export restrictions. On the other hand, the Customer shall personally check if any import restrictions apply in the country of delivery. The costs of any licences, where necessary, and the processing fees shall be borne by the Customer. The Customer shall bear any customs duties incurred.
- The delivery period shall be agreed individually with the Customer upon conclusion of the contract and specifies the period within which the product shall be made available for collection or made ready for dispatch by HEIGHT TECH.
§ 6 Force majeure; Right of withdrawal
- If, after conclusion of the contract, an event of force majeure makes it impossible for HEIGHT TECH to deliver the ordered product, either permanently or for a non-foreseeable period of time, the Customer and HEIGHT TECH may both withdraw from the contract. Force majeure is deemed to exist where there are circumstances that are beyond the control of HEIGHT TECH and that are, even with the utmost diligence, unforeseeable and thus unavoidable, e.g. natural disasters, shortage of raw materials, fire or terrorist attacks.
- In the event of temporary delivery problems within the meaning of clause 1 above, HEIGHT TECH and the Customer shall make a contractual adjustment stating a new delivery date, insofar as this is reasonable after weighing up the interests of both Parties. If the contractual adjustment is unreasonable for the Customer, because, for example, delivery at a later date is no longer of any economic value to it, it may withdraw from the contract. Delay in delivery alone shall not suffice as a cause for withdrawal.
- HEIGHT TECH shall be entitled to the right under clause 1 above insofar as HEIGHT TECH receives deliveries from other suppliers (upstream supply) and these deliveries cannot be made for an unforeseeable period of time due to operational disruptions suffered by the upstream suppliers. If the upstream supply is temporarily not possible, clause 2 above shall apply accordingly. HEIGHT TECH shall inform the Customer without delay of the reasons for the non-availability of the ordered product.
- In the event of force majeure, the Customer shall not be entitled to claim compensation from HEIGHT TECH on grounds of impossibility of performance or delayed delivery. Where the Customer has already made payments to HEIGHT TECH, HEIGHT TECH shall reimburse these immediately after withdrawing from the contract.
§ 7 Withdrawal by the Customer prior to delivery
If the Customer withdraws from the purchase contract prior to delivery without legitimate cause and if HEIGHT TECH has already commenced executing the order, HEIGHT TECH shall be entitled to claim 10% of the purchase price from the Customer for damages. The amount of compensation shall be set higher or lower if HEIGHT TECH can prove that higher damage was incurred or the Customer can prove that lower damaged was incurred.
§ 8 Retention of title
- HEIGHT TECH shall reserve the right to retain ownership of the delivered product until such time as the purchase price has been paid in full. The delivered product shall remain the property of HEIGHT TECH until such time as all present and future claims asserted by HEIGHT TECH from an ongoing business relationship have been settled by the Customer.
- The products that are subject to retention of title may not be pledged or assigned to third parties by way of security until such time as the secured claims have been settled in full. The Customer shall inform HEIGHT TECH without delay if and to the extent to which third parties gain access to the products belonging to HEIGHT TECH, or if any such access is imminent. The Customer shall bear all costs necessary to block access and to replace the product subject to retention of title, insofar as such costs cannot be collected from third parties.
§ 9 Duties of the Customer to inspect
The Customer shall be obligated to inspect the contract products for defects immediately upon delivery. If the inspection reveals a defect, the Customer shall be obligated to notify HEIGHT TECH of the defect without delay (so-called obligation to notify about defects). Compliance with this obligation is a prerequisite for the assertion of the rights pursuant to Sections 10 to 11; this shall not apply for the intentional concealment of a defect by HEIGHT TECH.
PART 3: LIABILITY AND DAMAGES
§ 10 Material defects; Subsequent performance
- A defect shall be deemed to exist where the product does not possess the agreed properties and quality at the time of handover – or in the case of delivery, at the time of handover to the person responsible for transportation. Where there are differences of opinion concerning the agreed properties, the details specified in HEIGHT TECH’s Non-Binding Offer and in the Customer’s Order Proposal shall be decisive. If the details specified by the Customer are incorrect, HEIGHT TECH shall not be held responsible for this insofar as it could assume that the details were accurate.
- If rectification of the defect is possible and reasonable for HEIGHT TECH, the Customer shall grant HEIGHT TECH as much time as necessary to rectify the defect. Instead of rectifying the defect, HEIGHT TECH may supply the Customer with a substitute product. Should the attempt to rectify the defect fail, the Customer shall reserve the right to reduce the agreed purchase price or to withdraw from the contract. The same shall apply insofar as the Customer cannot be expected to agree to rectification of the defect either due to time constraints or for reasons that can be attributed to the conduct of HEIGHT TECH. Withdrawal from the contract presupposes that the defect is substantial. This is usually the case where, due to the defect, the agreed purchase price would have been at least 5% less than it actually was.
- The additional expenses incurred in rectifying the defect, such as transportation, cost of labour and material costs, shall be borne by HEIGHT TECH.
§ 11 Liability and damages; Time limitation for claims
- The Customer shall be entitled to claim damages or compensation from HEIGHT TECH due to a breach of contractual and non-contractual obligations in the following cases:
- for injury to life, body or health resulting from a wilful or negligent breach of duty on the part of HEIGHT TECH or a wilful or negligent breach on the part of its legal representatives or vicarious agents;
- for causation of any further damage that
- results from a wilful or grossly negligent breach of duty on the part of HEIGHT TECH or a wilful or grossly negligent breach of duty on the part of its legal representatives or vicarious agents; or
- results from a wilful or negligent breach of obligations that are essential for achieving the purpose of the contract, i.e. the fulfilment of which enables the due and proper execution of the contract and upon the observance of which the Customer regularly relies and should be able to rely (so-called cardinal obligations);
- for fraudulent concealment of a defect;
- for breach of a service-life guarantee taken out on the product, where applicable; and
- for requirements of liability under the German Product Liability Act.
- If HEIGHT TECH is in default of delivery without wilful intent or gross negligence, liability for damages shall be limited to an amount equivalent to the net amount of the agreed purchase price. If the Customer declares to HEIGHT TECH its intention to withdraw from the contract on grounds of a delay in delivery, clause 1 above shall apply accordingly to the Customer’s claim for damages against HEIGHT TECH.
- In the case of slightly negligent conduct, HEIGHT TECH shall not be liable for damages that are unforeseeable and untypical where the breach of duty is viewed objectively. The damages shall also be deemed to be unforeseeable and untypical where the Customer failed to adequately inform HEIGHT TECH at the time of concluding the contract of the importance for the Customer of the execution of the order and of the related expenses, and HEIGHT TECH was therefore not in a position to take special precautions.
- For typical contractual and foreseeable damages, compensation for financial losses on grounds of the delivery of a defective product due to slightly negligent conduct shall be limited to an amount equivalent to the net amount of the agreed purchase price.
- The claims of the Customer against HEIGHT TECH shall expire after a period of one year with the exception of the cases outlined in clause 1 a) – e) above, for which statutory periods of limitation apply. The limitation period shall commence upon handover or delivery of the product to the Customer or, where the subject matter of the contract was the provision of a service or performance of work, upon the provision or performance of such.
PART 4: FINAL PROVISIONS
§ 12 Operating the products
The Customer shall be solely responsible for the operation of the product and for any damages resulting therefrom. It shall obtain adequate information about the product from HEIGHT TECH and use it insofar as it is able to operate the product safely. It shall comply with all relevant statutory and official provisions.
§ 13 Intellectual property rights
- HEIGHT TECH shall retain ownership of the intellectual property rights to its products, photographs, video recordings, documentation, reports, planning documents, evaluations, drawings, lists, illustrations, catalogues, expertise, computer programmes and all other results delivered to the Customer.
- HEIGHT TECH shall grant its Customers a simple and unlimited right of use to the aforementioned intellectual property rights, in particular copyrights.
§ 14 Place of jurisdiction; Applicable law
- The competent courts at the registered place of business of HEIGHT TECH shall be solely responsible for any and all legal disputes arising directly or indirectly from the contractual relationship. This shall also apply in particular insofar as the establishment of the contractual relationship and the effectiveness of such are under dispute.
- The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 15 Severability
Should individual provisions of these General Terms and Conditions of Business be or become ineffective, either in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provisions shall be replaced by the statutory regulations.