§ 1 Offer and conclusion of a contract
1. The order is considered to be accepted, if it is acknowledged in writing. Until that moment our offer is regarded as unbinding. Additions, amendments or collateral agreements made by cable, on the phone or verbally also require written acknowledgement for their effectiveness.
2. Purchase conditions of the customer are expressly contradicted; they are even not binding, if we do not contradict once more when concluding the contract.
3. We reserve the right of ownership and copyright for drawings, models and other documents; they should not be made accessible to third parties and have to be sent back immediately and free of charge on our demand or if the order is not placed with us.
4. With an order placement or the acceptance of the performances the customer recognizes the validity of our General Conditions of Delivery and Payment not only for the corresponding transaction but also for all future transactions.
§ 2 Extent of the delivery obligation
1. Dimensions, weights, illustrations, drawings and ratings are only binding for the execution, if they are expressly confirmed in writing. Gross weights and case dimensions are indicated in approximate values according to best estimation, but without commitment.
2. For the electronic accessories (motors, etc.) the delivery terms of the Central Association of the Electro-technical Industry are valid and for the execution the regulations of the Association of German Electro-technicians apply.
§ 3 Price
1. The prices are valid ex works, packing included, without insurance and listing. The same applies in case of partial deliveries and special deliveries.
2. The statutory value added tax is not included in the prices. The valid rates are separately invoiced.
§ 4 Terms of payment
1. The prices are indicated in Euro.
2. The acceptance of drafts and checks only takes place on account of payment; the costs for the discounting and the retirement are to be borne by the customer.
3. As far as it does not result otherwise from the acknowledgement of order, the purchase price is due for payment net (immediately). We are entitled to claim interests after due date to the amount of 2 % above the respective discount rate of the Deutsche Bundesbank p. a. If we are able to prove a higher damage caused by delay, we are entitled to assert this one.
4. The customer is only entitled to set-off rights, if his counter-claims are effective, undisputed and recognized by us. The customer does not have a retention right based on counter-claims.
5. Payments should only be made in our favour.
§ 5 Delivery time
1.The beginning of the delivery time indicated by us requires the clarification of all questions.
2. If the delivery is delayed for reasons, for which we are responsible, the customer is entitled to claim a lump-sum compensation for delay to the amount of 0.5 % of the order value for deliveries still open for every full week of delay, however, maximum 5 % of the order value for the delivery still open.
3. If the customer grants an appropriated respite with rejection threat after the delay had occurred, he is entitled to cancel the contract after fruitless expiry of this respite; the customer only has the right for compensation claims due to non-compliance to the amount of the foreseeable damage, if the delay was caused wilfully or is due to negligence; incidentally the liability for damages is limited to 50 % of the damage occurred.
4. The observance of our delivery obligation provides the proper fulfilment of the obligations of the customer in good time. As far as the completion is delayed due to an action or a negligence of the customer, a prolongation of the delivery time has to be granted, actually also during a delay in delivery.
5. Deliveries before expiry of the delivery time as well as partial deliveries are allowed.
6. If the customer faces an acceptance delay or if he violates other participation duties, we are entitled to claim the damage we suffer, including possible additional expenditures. In this case, the danger of an accidental decline or an accidental deterioration of the object of sale is transferred to the customer in that moment, in which he got into this acceptance delay.
§ 6 Call orders
1. The customer commits himself to accept the goods ordered within a deadline of 6 months from the first call date indicated in the order. An offset is executed on call or with expiry of the above mentioned deadline at the latest. Other acceptance terms have to be expressly agreed and must be confirmed in writing.
§ 7 Passing of risk
1. The risk is passed over to the customer with the dispatch ex works, also, if a delivery with carriage paid was agreed.
2. If the dispatch is delayed for reasons, the customer is responsible for, the passing of risks takes place with the advice of dispatch. Storage costs arising after passing of the risk are to be borne by the customer.
3. Insurance schemes against transport damages are to the account of the customer.
4. If the dispatch is delayed due to circumstances, for which we cannot be held responsible, the risk is passed over to the customer from the date of dispatch readiness. Furthermore storage fees would be charged to the customer to the amount of ¼ % of the invoice amount for each month started, beginning one month after advice of dispatch.
5. Regarding the payment agreements the day of the readiness for dispatch is considered as delivery day
§ 8 Liability for defects of the delivery
1. Within 6 months from the commissioning all parts have to be repaired or newly delivered free of charge, according to a choice at our reasonable discretion, which prove to be useless or to be considerably reduced in ist usability due to a circumstance, occurred before the passing of risk – especially due to faulty construction, bad building material or insufficient execution. The determination of such defects has to be communicated immediately in writing. Replaced parts become our property. For essential purchased parts our liability is restricted to the assignment of liability claims, to which we are entitled against the supplier of purchased products. In case of multiple shift operation the period is reduced from 6 months to 3 months.
2. The customer’s right to assert claims due to defects becomes statute-barred in all cases within 6 months from the moment of the complaint, which has to be made in time, however, with expiry of the guarantee period at the earliest.
3. No guarantee is accepted for damages, which are caused by the following reasons: unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear, faulty or negligent treatment, unsuitable operating means, replacement materials, inadequate construction works, unsuitable building land, chemical, electro-chemical or electric influences, as far as they cannot be put down to a fault on our part.
4. After we had been advised, the customer has to grant us the required time and the opportunity to carry out all repairs and replacement deliveries, which we consider to be necessary at our reasonable discretion. Otherwise, we are released from the defect liability. The customer is only entitled to remove the defect himself or have it removed by a third party and to claim the compensation of the necessary costs in urgent cases of endangerment of the operation security and for the protection against excessively high damages, where we have to be informed at any rate, or if we are in delay regarding the removal of the defect.
5. Of the costs directly caused by the repair or the replacement delivery we bear the costs for the spare part including the dispatch as well as the reasonable costs for the dismantling and the assembly – as far as the claim proves to be justified. Furthermore we bear the costs of the possibly necessary provision of fitters and assistants – as far as this can be claimed rightly according to the individual case. All other costs are to the account of the customer.
6. The guarantee period for the spare part and the repair amounts to 3 months, however, it is valid at least until the expiry of the original guarantee period for the object of supply. The period for the warranty of the object of delivery is prolonged by the duration of the operation interruption caused by the repair works.
7. The liability for defects is cancelled for the consequences arising from modifications or repair works carried out improperly by the customer or a third party without our previous approval.
8. Further claims of the customer, especially claims for the compensation of damages, which did not occur at the object of delivery itself, are excluded. This exclusion from liability does not apply in case of intention or culpable negligence. However, we are only liable for culpable negligence of non-executive employees, if we violate an essential contractual obligation. The replacement of pure property damages, i. e. of production loss, production reduction or missed profits, is limited by the general principles of good faith, for example in the cases of excessiveness between the amount of the delivery price and the level of claims. Furthermore the exclusion from liability does not apply in cases, in which liability is granted in case of errors at objects of delivery for physical injuries or material damages at objects privately used according to the product liability law. It neither applies in case of missing properties, which are expressly guaranteed, if this guarantee had actually as object to secure the customer against damages, which did not occur at the object of delivery itself.
§9 Cancellation, joint liability
1. The customer may cancel the contract, if the delivery will finally be impossible for us. The same applies in case of inability. We have the right to cancel the contract, if its performance meets technical difficulties or act of God through no fault of our own, which cannot be surmounted or the surmounting of which would require an excessively high expenditure compared with the value of the services we have to furnish. This is particularly valid for operating failures, labor disputes, shortage or abnormal price increase for raw materials, transport means or human resources or in case of missing self-supply.
2. If a default occurs in the sense of § 5 of the conditions of delivery and payment and should the customer grant us a reasonable respite with the expressive declaration that he refuses the acceptance of the performance after expiry of this respite, the customer is entitled to cancel the contract as far as this respite is not observed.
3. If the impossibility occurs during delay in acceptance or due to the fault of the customer, this one remains committed to the consideration.
4. Furthermore the customer has the right to cancel the contract, if we culpably let expire fruitlessly a reasonable respite granted by the customer for the repair or the replacement delivery regarding a defect, for which we are to be held responsible in the sense of the conditions of delivery and payment.
5. Excluded are all other further claims of the customer, especially regarding cancellation or reduction as well as replacement of the damages of any nature and actually those damages, which did not occur at the object of delivery itself. The further regulations below § 8, clause 8 apply correspondingly.
6. As far as the object of delivery cannot be used according to contract by the customer through our fault due to a failure of execution or a faulty execution of consultations, which took place before or after conclusion of the contract, and due to a failure of execution or a faulty execution of other contractual collateral duties – especially instruction for operation and maintenance of the object of delivery – the aforementioned regulations according to clauses 1 to 5 apply correspondingly excluding further claims of the customer.
§ 10 Right to cancellation of the supplier
1. If we learn after conclusion of the purchase contract that the customer is in an unfavourable financial status, we can demand a security for the consideration or cancel the contract charging the expenditures made by us.
§ 11 Reservation of ownership
1. The goods delivered remain property of the supplier until the full redemption of all receivables of the supplier arising from the business relations with the customer, also as far as they should be integrated into current invoices. Cash payments, bank transfers or cheque payments which are executed against sending of a draft issued by the supplier and accepted by the customer, are only considered as payment, if the draft is honoured by the customer/acceptant and the supplier is completely released from the draft liability as drawer.
2. Every acquisition of property of the customer is excluded for the handling and processing of the goods delivered. The handling and processing is realized for the supplier in that way, that he has to be considered as manufacturer. In case of the processing with goods of other origin, which are also under a reservation of ownership extended to the processing, the supplier acquires the joint ownership of the new product in relation to the invoice value of his goods to the value of the other goods, which they have when being processed. If under certain circumstances joint ownership occurs during handling or processing of the reserved goods or its connection to other goods, this ownership or joint ownership is passed over to the supplier immediately when arising. The customer transfers all reversionary interests to the supplier, which may lead to an acquisition of property by him. The property arisen to the supplier due to a handling or processing or a connection has to be treated legally in the same way as the original product.
3. All claims of the customer arising from a resale of the product, of which the supplier posses ownership or joint ownership, are passed to the supplier already with the conclusion of the purchase contract and actually without consideration whether the product is sold without or after a handling or a processing or a connection or whether the question is of one or several buyers. If the supplier does not possess the product sold completely or if the product is sold together with goods not in the possession of the supplier, the assignment only comprises the counterclaim to the amount of the invoice value of his product. The customer is allowed to collect the assigned claim, but should not assign it, also not in case of a factoring business. The supplier may withdraw this authority, if the customer does not punctually meet an obligation he has towards the supplier or if circumstances become known, which let appear his rights to be in danger. The collection authority of the customer lapses automatically, if the customer stops payment, if he is asked by court for the disclosure of his financial circumstances, if the opening of a judicial scheme of arrangement or bankruptcy proceedings about his assets is applied or if he tries to reach an amicable settlement. On demand of the supplier the customer has to advise the assignment to the debtor of the assigned claim and has to inform the supplier about the debtor and the amounts this one owes and to pass over to the supplier the documents, which are necessary for the assertion of the assigned claims.
4. The supplier shall only sell, handle or process the product, which is in his possession or in joint ownership (reserved goods), or connect it with goods of other origin in the framework of the regular business. An alienation is only permissible in the framework of a sale and with the provision that the claims of the customer arising from the alienation transaction are transferred to the supplier. The customer is not authorized to dispose of the product in other ways. He is neither allowed to pawn it nor to assign it for security. The customer has to inform the supplier immediately about forthcoming access or access of third parties already realized regarding the reserved goods or the assigned claims. The customer has to bear the costs accruing to the supplier by the intervention.
5. If the customer defaults partially or completely regarding the fulfilment of a claim secured by the reservation of ownership or if the supplier becomes aware of circumstances, which seem to endanger his rights, he may claim the surrender of the goods delivered by him without having declared beforehand the cancellation of the purchase contract according to § 455 of the German civil code or without having determined a respite for the fulfilment of the payment obligation according to § 326 of the German civil code. The inventory of the purchase contract as well as the obligation of the customer are not affected by such a claim and by the surrender of the goods. If the supplier takes back goods delivered by him releasing the customer from his acceptance obligation, he may claim at least 25 % of the invoice value of the goods as compensation. The proof of a lower damage by the customer or of a higher damage by the supplier is hereby not excluded.
6. The reservation of ownership is conditionally cancelled in that way that the ownership of the reserved goods is automatically transferred to the customer with the full payment of all claims of the supplier arising from the business relationship and the assigned claims are passed to him. On request of the customer the supplier is engaged to release the securities (goods and claims) to which he is entitled according to the above mentioned rules at his choice as far as their value does not exceed the claims to be secured by more than 20 %.
§ 12 Place of performance, place of jurisdiction, practicable right
1. Place of performance for the services and the payment is our location in Schwerin.
2. Exclusive place of jurisdiction for all disputes about the contract and arising from the contract, also for draft and cheque proceedings, is Schwerin. However, we have the right to institute legal proceedings against the customer also at another place of jurisdiction valid for him.
3. In case of overseas operations the entire contract relation is subject to the law of the Federal Republic of Germany, as far as no other legal system intervenes. The application of the uniform law for the completion of international purchase orders for chattels and the uniform law for the international purchase of chattels is excluded. Special conditions for the delivery and the installation
1. The expenditures for the assembly and the termination rates arising to us are to be reimbursed, especially also those for overtime, Sunday work and rest-day working. Travelling time and waiting time are considered as working time. The invoicing of the accruing costs is carried out according to our assembly conditions.
Data privacy statement
This data privacy statement shall inform you about the kind and extent of processing of personal data made by HPM Hemscheidt Service GmbH. Personal data are regarded as information referring directly or indirectly to yourself.
The object of the activities of the company HPM Hemscheidt Service GmbH is the sale of spare parts and second-hand injection moulding machines as well as the direct intervention of technicians at the customers’ site. The activity takes place with direct contact to the customer, but distance marketing is done, too. For this purpose, the personal data (company, postal address, phone number, email address, as well as order data, payments terms, delivery data, customer/supplier ID) necessary for conclusion, implementation and cessation of contracts and agreements are processed. The legal basis for the processing of data is Art. 6 Par. 1 let. b and f GDPR.
HPM Hemscheidt Service GmbH is working continuously on the optimization of their service processes. The following data (e.g. for the maintenance of computing programs, development of networks) are communicated to service providers ( e. g. tax advisors, lawyers, programmers) for the purpose of quality management: company, postal address, phone number, email address, as well as type and quantity of the ordered goods, may be payment terms. The communication of data within the framework of quality management is done on the legal basis of Art. 6 Par. 1 let. b und f GDPR.
HPM Hemscheidt Service GmbH especially makes use of the regular transit by mail for delivering ordered goods, or works together with several other forwarders. Emons Spedition GmbH, Zur großen Heide 4, 19372 Spornitz is our partner for part load traffic But on customer wish we mandate another forwarder or pass the goods to other forwarders, too. The following data can be transferred to the forwarders for the purpose of delivering the ordered goods and announcing them to the recipient: Company, postal address, email address, phone number. Firma, Postanschrift, E-Mail-Adresse, Telefonnummer. The legal basis for the processing of data is Art. 6 Par. 1 let. b GDPR.
Treatment of outstanding debts
Provided that after sending of repeated reminders no in-payment is registered HPM Hemscheidt Service GmbH is authorized to transfer the data necessary for carrying out an encashment e.g. a trust encashment to a debt collector or a lawyer’s office. For encashment purposes, HPM Hemscheidt Service GmbH works together with company Creditreform MV von der Decken KG, Schelfstr. 35, 19055 Schwerin. For encashment, the following data are transferred: company, postal address, email address, phone number, type and quantity of ordered good, payment information if any. The legal basis for the data transfer is Art. 6 Par. 1 let. b GDPR.
HPM Hemscheidt Service GmbH has a legitimate interest for the prevention of criminal acts for your account. HPM Hemscheidt Service GmbH is authorized to use the data gathered in an order to check whether a suspicious order action is present (e g. simultaneous ordering of a variety of products under the same address but using different identities). The legal basis is Art. 6 Par. 1 let. b GDPR.
Identity check and check for creditworthiness
Especially in the export field it may occur that persons or companies do use false identities to acquire products. Furthermore, company names and addresses may change without HPM Hemscheidt Service GmbH gaining knowledge of this.
Especially also for the protection of your identity, HPM Hemscheidt Service GmbH is authorized within the frame of identity checks and checks for creditworthiness to:
- use information on financial standing (e g. insolvency, debt advice service, respite because of illiquidity) that have been gathered properly,
- use, if necessary, the contact data of your company (company name, postal address, phone number, fax number, email address, domain name) for the purpose of information, verification, evaluation of the del credere risk as well as for the former payment history especially with the help of the online form of Creditreform MV von der Decken KG, Schelfstr. 35, 19055 Schwerin.
The processing of your data within the framework of the check for creditworthiness is done on the legal basis of Art. 6 Par. 1 let. b und f GDPR.
Respite for cancellation
Personal data may be stored by HPM Hemscheidt Service GmbH as long as a legitimate interest exists and this interest predominates your interest for cancellation of storage. In cases where the interest of HPM Hemscheidt Service GmbH for storage of data does not predominate your interest for cancellation of the storage may the storage go ahead if this has to be done because of legal prescriptions (e. g. commercial law or fiscal law). The respite for cancellation accounts for up to 10 years. In such cases, your data are stored exclusively for fulfilling legal prescriptions and are blocked for other access, if necessary.
Right of objection
You may anytime and free of charge, with effect to the future and for the particular communication channel separately lodge an objection against data processing for the purposes mentioned above. For this purpose, an email or a letter to the contact data mentioned under „Responsible Authority“ is sufficient.
Rights of the persons affected
You are entitled
- to information about your personal data processed by us acc. to Art. 15 GDPR,
- to correction of incorrect and to completion of correct data acc. to Art. 16 GDPR,
- to cancellation of your data stored by us acc. to Art. 17 GDPR as far as no legal exception to the right of cancellation does exist. Furthermore it is possible to lodge an objection concerning the processing of personal data on the basis of a legitimate interest when there is no legitimate interest on our part for data processing.
- to restriction of processing your data acc. to Art. 18 GDPR as far as the correctness of your data is denied by you, the processing is unlawful but you refuse the cancellation, the responsible authority does not need the data any longer but you need them for the purpose of claiming, performing or defending legal titles or you have lodged an objection against data processing acc. to Art. 21 GDPR,
- to transferability of data acc. to Art. 20 GDPR, that means that special personal data about you stored by us may be transferred to you in a common machine-parsable format or you can demand to transfer these data to another responsible person,
- to withdrawal of your consent to us for processing your data acc. to Art. 7 GDPR at any time. The withdrawal does not implicate that the data processing carried out until the moment of withdrawal on the basis of your consent becomes void,
- to complaint at a regulatory authority acc. to Art. 77 GDPR.
You may claim your rights as person affected under email@example.com . The regulatory authority responsible for HPM Hemscheidt Service GmbH is the Regional Commissioner for Data Protection and Freedom of Information of Mecklenburg-Vorpommern.
Right for information and contact person for data protection
Please contact the „Responsible Authority“ mentioned below for questions concerning acquisition, processing or use of your personal data; for information about, correction, blocking or cancellation of data as well as for withdrawal of consents.
Responsible for the processing of your personal data is
HPM Hemscheidt Service GmbH
You can contact the responsible authority by using the email address firstname.lastname@example.org.