General Terms and Conditions (GTC) of HiPer Ceramics GmbH

1. Scope, Purchasing Conditions of the Customer

1.1 These terms apply to all of our deliveries and orders. The validity covers the initiation, conclusion, and execution of all – also future – transactions with the customer. Any conflicting purchasing or order conditions of the customer are expressly rejected and are not binding on us, even if they claim exclusive validity or are introduced in a declaration of intent following our offer or order confirmation, and we do not object again. The present conditions are considered accepted by the customer at the latest upon receipt of our delivery (the delivery item).

1.2 Should the validity of these terms or individual clauses thereof or the recognition of conflicting GTC of the customer or individual clauses thereof be waived, the legal validity requires written confirmation in the order confirmation. Even if these terms are waived or conflicting purchasing/order conditions of the customer are recognized, the provisions of these terms regarding the retention of title (Section 8.1 – 8.8), the exclusion of claims in the event of unintentional business disruptions and lack of self-delivery (Section 4.1), applicable law, and jurisdiction (Section 10.1 – 10.2) shall continue to be part of the contract, unless we have explicitly waived these clauses in writing.

1.3 If both contracting parties insist on the exclusive validity of their GTC and the customer's recognition of these terms cannot be deduced from their behavior during the conclusion or execution of the business or from circumstances resulting from an ongoing business relationship, but the contracting parties nonetheless carry out the business through delivery/performance of work and its acceptance, the contract shall be deemed concluded under exclusion of the mutual GTCs, with the content specified in our order confirmation and the purchase or work contract provisions of the law. The transfer of ownership of the delivery item also takes place in these cases under the condition of full payment of the purchase price (Section 8.1 – 8.7).

 

2. Communication

For these terms, written declarations can also include telegrams, faxes, and communications printed by computer (e.g., e-mails), provided they are customary in the course of business.

 

3. Offers, Contract Conclusion

3.1 Offers are always non-binding. Contract terms are established only upon receipt of our written order confirmation by the customer.

3.2 The information contained in offers and attached documents regarding dimensions, weights, load capacity, and other product properties do not constitute guarantees or assured characteristics. They only become a characteristic of the delivery item and part of the contract if explicitly listed in the order confirmation. An oral agreement of the transaction is not binding.

3.3 For framework contracts, the acceptance period is 12 months from the date of order, unless otherwise agreed in writing. Any remaining quantities may be delivered by us at the end of the term. If the customer does not specify the delivery lot sizes and dates at the time of the order, we may specify them after a framework term of 3 months.

 

4. Delivery Time, Delivery Disruptions, Partial Deliveries, Transfer of Risk

4.1 Delivery times are stated in the order confirmation. These are binding only if we confirm them in writing. Delivery periods may be delayed due to unintentional business disruptions of any kind as well as unintentional lack of self-delivery of preliminary materials. If the delay exceeds several weeks, both we and – after a grace period – the customer are entitled to withdraw from the contract. Claims for damages or other claims for restitution due to late or failed delivery – except in cases of intent or gross negligence – are excluded. The delivery period begins upon receipt of all documents required for the production/execution of an order (e.g., construction documents, models, samples), information (e.g., approvals), and final clarification of all technical details.

4.2 We are entitled to make partial deliveries. We are allowed to deviate up to 10% from the ordered quantity. In the case of lower quantities, no lack of contractual performance can be asserted. If delivery on demand is agreed, reasonable manufacturing periods are to be granted to us from the time of the request.

4.3 In the case of material provisions, we will not assume any responsibility for the risk of accidental loss or accidental deterioration of the delivery item, and the transport risk – even if the transport is carried out by us or by forwarders commissioned by us – passes to the customer/recipient upon leaving our factory.

 

5. Prices, Payment, Transport

5.1 The purchase price or costs incurred are recorded in our order confirmation. For domestic transactions, the applicable statutory value-added tax at the time of invoicing will be added, which we will separately show in our invoice, as per § 14 UStG. In the event of an increase in statutory charges or fees that burden the movement of goods or increase the cost of work services (in particular VAT, customs duties, compensation amounts, currency, freight charges) or tariff wages outside a period of 4 months after the conclusion of the contract but before the contract is executed, we are entitled to increase the price by the additional calculable costs evidenced by us. This also applies to the procurement of necessary preliminary materials for contracts that are not to be executed or partially executed until 8 months after the conclusion of the contract (e.g., framework agreements).

5.2 Invoices are payable without deduction within 30 days of receipt of the invoice. In the event of default in payment, we are entitled to charge interest at the rate of 8% above the applicable base interest rate of the European Central Bank. Further claims for damages in the event of default remain unaffected.

5.3 Our prices do not include transport costs and insurance; these costs are borne by the customer – unless free delivery has been agreed with the customer. The choice of transport means, freight forwarder, and carrier is left to us unless specifically prescribed by the customer. The delivery item will only be insured upon the customer's request and at their expense. If the acceptance of the delivery item does not take place, is not timely, or is incomplete without our fault, we are entitled to ship the delivery item without acceptance or store it at the customer's cost and risk and charge them accordingly.

5.4 The day on which we can dispose of the amount is considered the day of receipt for all payment methods. Payments by bill of exchange are not considered cash payments. Acceptance, including so-called refinancing bills, requires special agreement. Checks and rediscountable bills are only accepted for the purpose of fulfillment. All associated costs are borne by the customer.

5.5 The offsetting of counterclaims by the customer is excluded unless the counterclaims are legally established, undisputed, or acknowledged by us. Furthermore, the customer is only entitled to exercise a right of retention if their counterclaim is based on the same contractual relationship.

5.6 The customer's failure to comply with agreed payment terms, not only minor payment arrears, and a threat to our counter-performance claim due to the customer's lack of performance capacity, even after the conclusion of the contract, entitles us to suspend outstanding deliveries and execute them only against advance payment or provision of security. If the customer, in the event of a threat to our counter-performance claim, fails to fulfill our request within a reasonable period, to effect the counter-performance in return for the performance or to provide security, we can, after the deadline has expired, withdraw from the contract, without prejudice to further legal rights. The customer's threat to our counter-performance claim also entitles us to immediately declare all other claims from the contractual relationship with the customer due if we have already performed our service.

 

6. Material and Processing Defects, Duty to Notify, Warranty, Limitation of Liability

6.1 The customer shall examine the delivery item or the goods processed by us upon arrival to a commercially reasonable extent and shall promptly report material/processing defects in writing (§ 377 HGB). Hidden defects must be promptly reported in writing after discovering the error. Deviations in quantity, dimensions, and type are considered material defects. Upon expiration of the statutory limitation period for purchase or work contractual warranty claims, any complaint option expires.

6.2 Upon request, the customer shall allow us to examine the complained delivery item and refrain from making any modifications to the goods through further processing, installation, or other use until the decision on recognition/rejection of the complaint is made. Any warranty obligation ceases in the event of a culpable violation of these obligations by the customer. In case of doubt, the customer must prove the identity of the complained delivery item.

6.3 In the event of justified material/processing defects, we will, at our option, provide a replacement delivery, rectify the defect, or issue a credit note for the loss in value or cost of rectification. If the defect is not significant or the goods have already been processed or modified, the customer only has the right to reduce the price. The customer is entitled to assert other statutory warranty claims only after two failed attempts of replacement delivery or rectification. In the event that compensation is due for non-fulfillment, delayed fulfillment, or due to a positive breach of contract, we are liable – except in cases of intent or gross negligence – only up to the sales value of the delivery item. Compensation for damages that do not adhere to the delivered/processed delivery item itself (consequential damages) is excluded, unless we are liable under mandatory statutory product liability provisions. Insofar as costs arise in connection with the installation and removal of the defective delivery item, as well as expenses incurred because the sold delivery item has been moved to a location other than the agreed place of fulfillment, they are also excluded.

6.4 Replacement delivery/rectification may be refused as long as the customer does not fulfill their due payment obligations to us in a scope that corresponds to the defect-free part of the provided service.

6.5 In the event of an unjustified defect complaint, we are entitled to have the expenses incurred by the customer replaced.

6.6 The purchase or work contractual warranty does not cover damages to goods delivered/processed by us caused by faulty assembly, unsuitable use, improper commissioning by the customer, natural wear, excessive stress, use of unsuitable operating resources/tools, or other circumstances beyond our control within the customer's operational sphere.

 

7. Consulting, Material Testing, Assurances of Properties

7.1 It is solely the customer's responsibility to test the suitability of the delivery item for their own operational purposes or further processing purposes and to select the material. Advice or recommendations by us are provided without any liability. The information in material data sheets or factory certificates is not assurances or guarantees. No contractual ancillary obligations are assumed in this regard.

7.2 Special properties of the purchased item are only assured by us at the express request of the customer and are only assured if we explicitly mention this in our order confirmation.

7.3 If a chemical analysis or technical-physical data from a material test is contractually required, we only guarantee their reliability according to the examination possibilities of our factory laboratory.

7.4 For claims for damages by the customer due to the absence of assured properties (§§ 463, 480 paragraph 2, 635 BGB) or claims arising from the violation of our obligations under Section 7.3, the limitations of liability from Section 6.1 – 6.6 of these terms apply – except in the case of fraudulent intent or gross negligence – accordingly.

 

8. Retention of Title

8.1 Any delivery item (reserved goods) remains our property until all claims, in particular the respective balance claims, to which we are entitled within the framework of the business relationship, have been fulfilled (balance retention). This also applies to claims arising in the future and contingent claims, e.g., from bills of exchange, and even if payments are made on specifically designated claims. This balance retention expires permanently upon the settlement of all claims still outstanding and covered by this balance retention at the time of payment.

8.2 Any processing and treatment of the reserved goods shall be carried out for us as the manufacturer within the meaning of § 950 BGB, without obligating us. The processed or treated goods are considered reserved goods within the meaning of Section 8.1. In the event of processing, combination, or mixing of the reserved goods with other goods by the customer, we shall acquire co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership ceases due to combination or mixing, the customer hereby transfers to us their ownership rights to the new stock or item to the extent of the invoice value of the reserved goods and holds it in safekeeping for us free of charge. The reserved goods must be insured against usual risks such as fire, water damage, theft, and transport. The claims arising from a damage event against the insurer and third parties are hereby assigned to us in the amount of the invoice value of the affected reserved goods. This assignment is accepted by us. Our co-ownership rights are considered reserved goods within the meaning of Section 8.1.

8.3 The customer may only resell the reserved goods in the ordinary course of business under their normal business conditions and provided they are not in default, provided that the claims from the resale pursuant to Section 8.4 to 8.6 are transferred to us. They are not authorized to make any other dispositions of the reserved goods.

8.4 The claims from the resale of the reserved goods, together with all securities acquired by the customer for the claim, are hereby assigned to us. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not sold by us, the claim from the resale is assigned to us in proportion to the invoice value of the reserved goods to the invoice value of the other goods sold. If goods in which we have co-ownership shares pursuant to Section 8.2 are sold, a corresponding part of the claim is assigned to us.

8.5 The customer is authorized to collect claims from the resale. This collection authorization expires in the event of our revocation, at the latest in the event of payment default, dishonor of a bill, or an application to open insolvency proceedings. We will only make use of our right of revocation if it becomes apparent after the conclusion of the contract that our payment claim from this or other contracts with the customer is endangered due to their lack of performance capacity. At our request, the customer is obliged to immediately notify their customers of the assignment to us and to hand over the documents required for collection.

8.6 The customer must notify us immediately of any seizure or other impairment by third parties. The customer shall bear all costs incurred to remove access or to return the reserved goods, insofar as they are not reimbursed by third parties.

8.7 If the customer is in default of payment or does not honor a bill when due, we are entitled to take back the reserved goods and, for this purpose, to enter the customer's premises if necessary. The same applies if, after the conclusion of the contract, it becomes apparent that our payment claim from this or other contracts with the customer is endangered due to their lack of performance capacity. The return does not constitute a withdrawal from the contract and is at the customer's expense. Provisions of insolvency law remain unaffected.

8.8 If the invoice value of the existing securities exceeds the secured claims, including ancillary claims (interest; costs, etc.), by more than 50%, we are obliged to release securities to that extent at the customer's request, at our discretion.

 

9. Intellectual Property Rights, Drawings, Documents, Tools

9.1 We reserve ownership and copyright for all drawings, designs, and documents created by us. All drawings, designs, and documents created by us are to be treated confidentially and are subject to the protection of intellectual property under statutory regulations and may not be disclosed to third parties, in particular competitors, or used by the customer itself outside the contractual agreements.

9.2 If no contract is concluded, the drawings, designs, and documents that are part of our offer must be returned.

9.3 The tools, models, and fixtures remain our property, even if the customer has paid the costs for them in whole or in part.

 

10. Jurisdiction, Applicable Law, Place of Jurisdiction

10.1 For all legal relationships between us and the customer, in addition to these terms, German law, particularly the provisions of the BGB/HGB, shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.

10.2 The place of performance for our deliveries is, in the case of delivery ex-works, the delivery plant, for other deliveries, our warehouse. Jurisdiction is, at our choice, the seat of our plant or the seat of the customer.