General terms and conditions Hensel & Blank GmbH

  • 1 General – Scope of application
  1. The terms and conditions apply to all present services of Hensel & Blank GmbH. Furthermore they    apply to all additional and follow-up orders, since they’re similar contractual objects.
  2. Terms and conditions of purchasers or third-parties will be not applied, even though Hensel & Blank GmbH did not contradict their vadility in particular cases. Even if Hensel & Blank GmbH refers to a writing that contains terms and conditions of the purchaser or third-parties, this does not suggest any agreement with the vadility of this terms and conditions.
  3. The present terms and conditions only apply to companies, a legal person governed by public law or a domestic seperate fund under public law. Companies as defined by the terms and conditions is any natural or legal person or joint partnerships, who get into business relations and act in commercial or self-employed matters.
  • 2 Offer and conclusion of contract
  1. Hensel & Blank GmbH is only and as long bound to your written offer, as it is determined and there conditionally exists an objectively important reason pursuant to § 3 Abs. 6. Hensel & Blank GmbH may eliminate the period of validity of an offer wholly or partially, e.g. via the addition “non-binding offer”. As far as Hensel & Blank GmbH eliminates the period of validity of an offer wholly or partially, Hensel und Blank GmbH is able to reserve her right to recant your offer until the receipt of the acceptance declaration if Hensel & Blank GmbH is due to an interim activity not able to execute the offer. The declaration of an appropriate reservation within the offer can be carried out through the addition, e.g. offer not binding commensurate to availability.
  2. An offer materializes only through the written conclusion of contract or the written confirmation of an assignment offering of Hensel & Blank GmbH, however since at least at the beginning of executing the services. Nature and scope of the performances owed by Hensel & Blank are determined – unless seperately agreed – exclusively by subject terms of contract respectively by the confirmation of the order quotation.
  3. Any information in brochures and other advertisement and found on the online presence of Hensel & Blank GmbH are neither an assumption of a guarantee nor any purchasing risk.
  • 3 Performances
  1. Between the purchaser and Hensel & Blank GmbH, a contract of service is respectively concluded. To fulfill the contract, Hensel & Blank GmbH reserves herself the possibility of instructing vicarious agents (subcontractors).
  2. Complaints about subcontractors have to be told to Hensel & Blank GmbH by the first day of the job execution, respectively immediately after getting aware of the reason of complaint. With substantiated complaints the purchaser is entitled to demand the replacement of the vicarious agent in written form. In case of the purchaser violating his reprimand duty, she is not entitled to deduce any rights from previous events.
  3. Deadlines and dates mentioned in the contract to fulfill the services are non-binding information, as far as Hensel & Blank GmbH doesn’t name the completion date explicitly as binding, respectively a time bargain in written form.
  4. If circumstances are encountered for which neither Hensel & Blank GmbH, nor her subcontractors or institutions are responsible for, that cause the disability to fulfill a fixed-term contract, the  binding date extends adequately. The fulfillment of binding dates requires the receipt of any necessary documents, drawings, originals, blueprints, licenses, approvals containing the duty of cooperation, the observance of agreed payment conditions, as well as the providing of any necessary material, information and establishments, that are needed for rendering the service. If the purchaser does not fulfill this duty of cooperation, the binding date extends relating to the actual delay.
  5. If the rendering of services is delayed due to reasons caused by the purchaser or her request, Hensel & Blank GmbH is entitled to demand compensation. In particular case the purchaser is free to prove a minor damage.
  6. Hensel & Blank GmbH is always entitled to refuse the partial or complete performance of services independent from the receipt of a binding offer, if there are important reasons. An important reasons could be for example the service provider participating on an illegal event, the exceeding of a credit limit granted by Hensel & Blank GmbH according to § 4 Section 7 or the negative result of a credit assessment (e.g. at Schufa, Creditreform, Bürgel etc.).
  7. If the assignment to Hensel & Blank GmbH contains, besides services, a contractual obligation for the production of a work, a separate contract about that will be concluded.
  • 4 Remuneration, terms of payment
  1. The purchaser pays a predetermined remuneration to Hensel & Blank GmbH for the predetermined performances due to the contract respectively the single order. All prices are net prices and less the shipping (place of performance) value-added taxes of the respective countries. The hourly rates agreed are squared completely for every started hour and without the discount of break times. The minimum stake time is six hours per day and per expensed provider, i.e. if the actual operating time is less than six hours, at least six hours per provider/day have to be reimbursed though.
  2. The performance of services by Hensel & Blank GmbH occurs fundamentally – especially at new customers – for advance payments, as far as there is no other agreement made. If a discount deduction is contractually fixed, it will be considered at the advance payment.
  3. a) If the purchaser gets in default of payment, Hensel & Blank GmbH is entitled to demand alternatively the advance payment within a period grace set to the purchaser or a safety performance for the complete order amount. After the fruitless expiry of the period grace,     Hensel & Blank GmbH is justified to withdraw from the contract and to demand compensation for damages.
  4. b) As far as Hensel & Blank GmbH begins the performance of services initially without or partial receipt of the advance payment, however she is entitled to predicate the continuation of the performances on the payment of the whole order amount (less the discount deduction if necessary)    at any time. The beginning of performing the services without advance payment does not mean that Hensel & Blank GmbH renouces the right to demand an advance payment in the amount of the total order value.
  5. c) If Hensel & Blank GmbH demands advance payment during performance of services and predicates the continuation on this advance payment, the purchaser has to pay cash or to prove the advance payment by specific documents so the continuation of performances can be ensured. The purchaser complies with advance payment, respectively the proof of advance payment immediately due to self-interest.
  6. d) If the purchaser does not provide immediate advance payment and prove it by appropriate documents despite request, Hensel & Blank GmbH is justified to withdraw from the contract and to demand compensation for damages.
  7. If Hensel & Blank GmbH renounces the right of advance payment and as far as there are no other agreements set in the contract, the invoice amount is due ten days after the invoice date and accounting without any discount.
  8. a) Discount deductions require a separate written agreement and otherwise conform with the contractual content. Material to the timeliness and cash discount is the credit of the amount owed on Hensel & Blank GmbH business account respectively cash payment.
  9. b) Any charges like transfer costs or bank fees for transfers to Hensel & Blank GmbH business account, which is an account at a German bank, are beared by the purchaser.
  10. Unless otherwise agreed in written form, all payments are to be done cash or via transfer. Checks are only accepted due to a specific agreement and as conditonal payment. If the date of payment is exceeded, without any further reminder Hensel & Blank GmbH recieves a claim for default interest eight percent above the base interest rate (ECB). The assertion of further damages caused by delay remains unaffected.
  11. Hensel & Blank GmbH is entitled to charge payments on the purchaser’s older debts. If any costs occured already due to the delay, Hensel & Blank GmbH is justified to charge the payment at first on the costs, then on the interest rates and finally on the principal claim. If the purchaser determines alternative repayment terms, Hensel & Blank GmbH is entitled to refuse the payment.
  12. As far as the purchaser differs from the agreed terms of payment without any justifying reason, Hensel & Blank GmbH is independent from § 4 Section 2 additionally entitled to demand either cash, advance payment or security for any further performance of services. Any open demands including these, for that Hensel & Blank GmbH accepted bills of exchange or installments, become due immediately.
  13.  The agreed payment conditions persist with regard to the credit limit for any individual order granted by Hensel & Blank GmbH. By fixing the current credit limit, outstanding payment obligations of current or former contracts are considered. With exceeding the respective currently fixed credit limit, Hensel & Blank GmbH reserves to demand the remaining contract value as  advance payment. In case of a subsequently occured change in the creditworthiness or overrun of the purchaser’s credit limit, Hensel & Blank GmbH is justified to exercise the rights of §4 section 2 and 6.
  14. If the purchaser stays in default of settling an agreed partial or total amount in spite of a complementary payment request, Hensel & Blank GmbH is entitled to terminate the contractual relationship immediately without previous notice.
  • 5 Liability
  1. The liability of Hensel & Blank GmbH for damages, irrespective of their legal causes, especially resulting from impossibility, default, contractual infringement, breach of obligations during negotiations and tort is, as far as it involves respectively culpability, restricted according to this paragraph.
  2. Hensel & Blank GmbH is not liable.
  3. a) in case of ordinary negligence of her institutions, legal representatives, employees or othersubcontractors.
  4. b) in case of gross negligence of one of her non-executive employees or other subcontractors, as far as it is not about the violation of a contractual obligation.
  5. As far as Hensel & Blank GmbH is liable for damages according to section 2, the liability is limited to damages, that Hensel & Blank GmbH forecasted as a possible consequence of a breach of contract during the conclusion of contract or that, with applying due care and attention, had to be forecasted in consideration of circumstances, that Hensel & Blank GmbH knew or should have known.
  6. In case of liability for ordinary negligence the duty of replacement of Hensel & Blank GmbH for material or personal damages is limited to the amount of 300,000 Euro per claim (commensurate to the current sum insured of the Hensel & Blank’s liability insurance), even in case of violating contractual obligations.
  7. The aforementioned limitations and exclusions of liability apply to the same extent to the institutions, legal representatives, employees or other subcontractors of Hensel & Blank GmbH.
  8. If Hensel & Blank GmbH provides technical information or works consultatively and this information or advice does not belong to the owed and contractually agreed scope of services, this happens gratuitously and under exclusion of any liability.
  9. Limitations of this paragraph do not apply to the liability of Hensel & Blank GmbH for intentional behaviour, for damage to life, body or health or according to the German product liability law.
  • 6 Termination
  1. On both sides the contract can only be terminated due to an important reason. An important reason occurs if facts are given, because of which, in consideration of any circumstances of the individual case and in consideration of the interests of the contracting parties, the continuation of the contract can not be expected from the terminating party. If the purchaser terminates the contract without important reason or if Hensel & Blank GmbH terminates the contract due to an important reason imputable to the purchaser, Hensel & Blank GmbH keeps the total outstanding or expectable claim to remuneration, less all saved expenses. All contractual partners reserve the right to prove lower or higher damages.
  2. The termination has to occur in written form.
  • 7 Failure conditions, withdrawal
  1. The purchaser is justified to withdraw from the contract at no charge until 6 weeks before project launch. If the withdrawal occurs until 8 days before project launch, the purchaser has to compensate 50% of the agreed remuneration to Hensel & Blank GmbH. If the withdrawal occurs    after 8 days before project launch, the purchaser has to compensate the total amount of the agreed remuneration to Hensel & Blank GmbH, less possible saved expenses.
  2. The evidence, that in an individual case a lower refund amount has to be set, remains to the purchaser.
  • 8 Exclusion of set-off
  1. The purchaser only has the right to set-off, if her counterclaims are legally determined and undisputed. The purchaser is only justified to execute the right of retention, as far as her counterclaim bears on the same contractual relationship.
  • 9 Secrecy, non-competition clause
  1. he purchaser has to keep business secrets, documents, know-how and information of or about Hensel & Blank GmbH or their respective partners or customers confidential towards third-parties and only uses them to accomplish the contractually agreed performance to her customer. This commitment persists as well two years after contract termination.
  2. The purchaser has to maintain silence due to any information about Hensel & Blank GmbH, that can not be found in the official advertising documents, announcings or media of Hensel & Blank GmbH.
  3. The purchaser engages oneself to keep all documents, materials or data storage media provided by Hensel & Blank GmbH properly safe from third-parties access.
  4. After performing the contractual services respectively after completing the individual order the purchaser has to return any documents, materials and information including additional copies related to the individual order to Hensel & Blank GmbH immediatly and without request. To this extent a right of detention does not exist.
  5. The purchaser commits herself to not do any direct or indirect business with providers or partners of Hensel & Blank GmbH, who worked in the course of the closed contract for Hensel & Blank GmbH and the purchaser got to know through this circumstances, over a period of two years. This customer protection clause applies as well to all business preparatory measures and for the possible case, if the purchaser occupies through help of a third-party or in another way, directly or indirectly, performances of one of these providers or partners. This rule does not apply to providers, who had been hired by the purchaser already before business relationships with Hensel & Blank GmbH were initiated.
  6. If the purchaser infringes the preceding regulation, she shall pay a contractual penalty amounting to 45% of the fixed order volume, agreed with the provider or partner.
  7. The purchaser grants Hensel & Blank GmbH the right to consult a lawyer, accountant or tax consultant to give him/her access to books and accounts, if reasonable grounds occur.
  •  10 Newsletter, data protection
  1. The purchaser agrees, that Hensel & Blank GmbH shall be entitled, to process and use her inventory data, as far as this is necessary for advisory to the purchaser, promotion or market research for own purposes and needs-based configuration of her performances. The purchaser as    well agrees, that her data can be used for marketing purposes and Hensel & Blank GmbH (or others)  is allowed to inform her via email about interesting offers. The purchaser has the option to terminate the newsletter delivery at any time without giving reasons. This can occur e.g. by activating the “unsubscribe”-link at the end of the newsletter or per post (Hensel & Blank GmbH, Arrild 16, 24407 Oersberg, Germany).
  2. The purchaser can object to the use of her data at any time. Hensel & Blank GmbH will give any information about stored data to the purchaser by request and free of charge, as long as they are related to the purchaser.
  3. he purchaser notices, that Hensel & Blank GmbH stores data about the contractual relationship according to § 28 Bundesdatenschutzgesetz for the purpose of data processing and reserves the right to provide data to third-parties if necessary.
  • 11 Schlussbestimmungen; Gerichtsstand
  1. The underlying contract including this general terms and conditions and all legal relations of the parties are subject to the law of the Federal Republic of Germany excluding the CISG (United Nations Convention on Contracts for the International Sale of Goods).
  2. Court of jurisdiction for any disputes from relationships between Hensel & Blank GmbH and the purchaser is – insofar as permitted by law – up to Hensel & Blanks GmbH’s decision: Kappeln (Amtsgericht Kappeln/Landgericht Schleswig) or location of the purchaser. For complaints against Hensel & Blank GmbH Kappeln (Amtsgericht Kappeln/Landgericht Schleswig) is exclusive jurisdiction. Mandatory legal provisions about exclusive jurisdictions remain unaffected by this provision.
  3. All arrangements that were made between the parties regarding the performance of the contract are put into writing in the contract.
  4. If individual provisions in the contract with the purchaser including this general terms and conditions are or will be invalid or contain a loophole, other provisions remain unaffected.

Hensel & Blank GmbH 23.05.2016