General Terms of Sale and Delivery
- Scope of application
Our terms of sale and delivery apply exclusively. Conflicting or deviating terms and conditions of the customer or buyer shall not be accepted unless we have expressly agreed to their validity in writing. Our terms and conditions of sale and delivery shall also apply if we are aware of conflicting or deviating terms and conditions of the customer or buyer and carry out the delivery to the customer or buyer without reservation. When placing the order, the customer or buyer declares his unrestricted agreement with our terms and conditions.
Our terms of sale and delivery shall only apply to companies within the meaning of § 310 para. 1 BGB (German Civil Code).
Our terms and conditions of sale and delivery shall also apply to all future transactions with the customer or buyer.
Orders are not final and legally binding until acknowledged by us in writing.
All agreements made between us and the customer or buyer for the purpose of executing this contract is set out in writing in this contract.
The documents belonging to the offer such as illustrations, drawings, weight and dimension specifications, information on procedures, consumption and services are only approximate unless they are expressly designated as binding. We reserve title and copyright to illustrations, drawings, calculations, cost estimates and other documents; they may not be made accessible to third parties. This shall also apply to other written documents designated as "confidential". We undertake to make plans designated by the customer as confidential accessible to third parties only with the customer's consent.
- Scope of delivery
Our written order confirmation is decisive for the scope of delivery. Subsidiary agreements and amendments require our written confirmation.
We reserve the right to make customary changes and improvements with regard to design, material use and execution, provided that this does not impair the usability of the delivery item.
- Price and payment
Unless otherwise agreed, prices are ex works, excluding packaging. The prices are based on the current cost factors; we reserve the right to change the prices accordingly if the cost factors change by the time of delivery. The prices are subject to the respective statutory value added tax.
In the absence of a special agreement, payment shall be made within 10 days with 2% discount or 30 days without any deduction from the invoice date to the supplier's account.
Payments for rent and assembly are due within 10 days without any deduction.
If the customer or buyer is in default with payment, annual interest of 9% points above the respective base interest rate of the Deutsche Bundesbank, but at least 10%, shall be charged without any notice of default being required if the customer is not a consumer within the meaning of § 288 Para. 2 BGB. Otherwise, an annual interest rate of 5% above the respective base interest rate shall be charged, but at least 7%, without any notice of default being required.
The customer shall only be entitled to set-off and retention rights if his counterclaims have been legally established are undisputed or acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- Time of delivery
Delivery dates or deadlines which have not been expressly agreed as binding are exclusively non-binding information.
The delivery period stated by us begins with the dispatch of the order confirmation, but not before all technical questions have been clarified and the customer or buyer has fulfilled his obligation (e.g. provision of the documents, permits, releases to be procured by him and payment of an agreed down payment) in a timely and proper manner. The defence of non-performance of the contract remains reserved.
The delivery period shall be deemed to have been complied with if the delivery item has left the factory or readiness for dispatch has been notified before expiry of the delivery period.
The delivery period shall be extended appropriately if unforeseen hindrances occur which are beyond our responsibility - regardless of whether they occur in our factory or at our subcontractors - e.g. industrial disputes, operational disruptions, rejects, delays in the delivery of essential raw materials and construction materials -, insofar as such hindrances demonstrably have a considerable influence on the completion of the delivery of the delivery item.
In important cases, we shall inform the customer or purchaser of the beginning and end of such hindrances as soon as possible.
If dispatch is delayed at the request of the customer or buyer, the costs incurred by storage shall be charged to the customer - commencing 1 month after notification of readiness for dispatch - but at least 0.5% of the invoice amount for each month in the case of storage at the supplier's works, unless the customer or buyer proves lower costs.
However, we shall be entitled, after setting and fruitless expiry of a reasonable deadline, to otherwise dispose of the delivery item and to supply the customer within a reasonably extended period.
Compliance with the delivery period presupposes the proper fulfilment of the contractual obligations of the customer or buyer.
- Passing of risk and acceptance
Unless otherwise stated in the order confirmation, delivery is agreed to be "unloaded ex works" and, if a forwarding order has been placed, "unloaded". The risk shall pass to the customer or buyer at the latest when the delivery parts are dispatched, even if partial deliveries are made or the supplier has undertaken other services, e.g. shipping costs or delivery and installation. At the customer's or buyer's request, the supplier shall insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks at the customer's or buyer’s expense.
If dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer or buyer from the date of readiness for dispatch; however, we shall be obliged, at the request and expense of the customer or buyer, to take out the insurance required by the latter.
Delivered items, even if they have minor defects, are to be accepted by the customer or buyer, notwithstanding the rights under section 8.
Partial deliveries are permissible.
- Retention of title
We reserve title to all delivery items until all our claims against the customer or buyer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, has been settled.
This shall also apply if individual or all of our claims have been included in a current account and the balance has been struck and acknowledged. In the event of breach of contract by the customer or buyer, we shall be entitled to withdraw from the contract in particular in the event of default in payment, pledging or transfer by way of security. In the event of attachment of the object by us, a withdrawal from the contract shall only exist if this is declared by us in writing, unless the law on instalments is applicable. In the event of attachments or other interventions by third parties, the customer or purchaser must notify the supplier immediately in writing.
The customer or buyer is entitled to resell the delivery item in the ordinary course of business. If goods are combined or inseparably mixed by us with other movable objects to form a uniform object and if the other object is to be regarded as the main object, it shall be deemed agreed that the purchaser or buyer shall transfer co-ownership to us on a pro rata basis insofar as the main object belongs to him. The customer or buyer shall keep the ownership or co-ownership in safe custody for us. However, he hereby assigns to us all claims arising from the resale against the purchaser or against third parties, regardless of whether the reserved goods are resold without or after processing. The customer or buyer is authorised to collect these claims even after the assignment. This shall not affect our right to collect the claims ourselves; however, we undertake not to collect the claims as long as the customer or purchaser duly meets his payment obligations. We can demand that the customer or buyer informs us of the assigned claims and their debtors, provides all information necessary for use, hands over the relevant documents and informs the debtors of the assignment. If the delivery item is resold together with other goods which do not belong to us, the claim of the customer or buyer against the customer shall be deemed to have been assigned in the amount of the delivery price agreed between us and the customer or buyer. We undertake to release the securities to which we are entitled insofar as the value exceeds the claims to be secured by more than 25 %, insofar as these have not yet been settled.
Bills of exchange and cheques shall not be deemed payment until they have been fully honoured.
We are entitled to insure the delivery item against theft, breakage, fire, water and other damage at the customer's expense, unless the customer proves that he has taken out insurance.
The customer or buyer may neither pledge the delivery item nor assign it as security before full payment has been made. In the event of seizure, confiscation or other dispositions by third parties, he must notify us immediately.
In the event of breach of contract by the customer or purchaser, in particular default in payment, we shall be entitled to rescind the contract and the customer or buyer shall be obliged to surrender the goods.
- Liability for defects
The customer's or buyer’s rights in respect of defects presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
For defects in the delivery, which also include the absence of expressly warranted characteristics, we shall be liable to the exclusion of further claims and notwithstanding the provisions in Section 10.4 as follows:
All parts which prove to be defective within 12 months (in the case of multi-shift operation within 6 months) of delivery as a result of a circumstance prior to the transfer of risk - in particular due to faulty design, poor materials or defective workmanship - shall be repaired or replaced free of charge by us at our discretion. The discovery of such defects must be reported to us immediately in writing. Replaced parts shall become our property.
For third-party products, our liability shall be limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product, insofar as the liability claims against the supplier of the third-party product can be enforced out of court within the periods specified in Section 8.1.
No liability is assumed for damages resulting from the following reasons:
Unsuitable or improper use, faulty assembly or commissioning by the customer or buyer or third parties, natural wear and tear, faulty or negligent treatment - in particular excessive strain -, unsuitable operating materials, replacement materials and similar circumstances.
The customer or buyer shall grant us a reasonable period of time to carry out all necessary improvements and subsequent deliveries which we are obliged to carry out at our reasonable discretion, otherwise we shall be released from our liability for defects.
If there is a delay in performance and the customer or buyer grants a reasonable grace period with the express declaration that he will refuse acceptance of the performance after expiry of this period and if the grace period is not observed, the customer or buyer shall be entitled to withdraw from the contract.
The customer or buyer shall not be entitled to carry out subsequent performance himself.
Of the direct costs arising from subsequent performance, we shall bear - insofar as the complaint proves to be justified - the material costs as well as the necessary labour costs for dismantling and installation. In all other respects, the customer or buyer shall bear the costs.
The warranty period for the replacement part and the repair work shall be 3 months, but shall run at least until expiry of the original warranty period for the delivery item. The period for liability for defects in the delivery item shall be extended by the duration of the interruption of operation caused by the repair work.
We may refuse to surrender the item free of defects as a result of subsequent performance as long as the customer or buyer does not fulfil his contractual obligations, in particular does not pay the full amount due.
We shall not be liable for the consequences of any modifications or repair works improperly carried out by the customer or buyer or third parties without our prior approval.
If the supplementary performance fails, the customer or buyer is entitled to either withdraw from the contract or demand a price reduction.
We shall be liable in accordance with the statutory provisions if the customer or buyer asserts claims for damages based on intent or gross negligence - including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.
We shall be liable in accordance with the statutory provisions if we culpably violate an essential contractual obligation; in this case the liability for damages shall be limited to the foreseeable, typically occurring damage.
Insofar as the customer or buyer is entitled to compensation for the damage instead of performance due to a negligent breach of duty, the liability for damages shall be limited to the foreseeable, typically occurring damage.
The customer or buyer may withdraw from the contract at his discretion if the entire performance becomes finally impossible for us before the transfer of risk. If the impossibility occurs during default of acceptance or through the fault of the customer, the latter shall remain obliged to provide consideration.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act and to liability based on data protection claims.
Any further liability for damages than provided for in this section shall be excluded - irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty and tortious claims for compensation for damage to property pursuant to § 823 BGB (German Civil Code). In terms of scope, this applies in particular to compensation for damage that has not occurred to the delivery item itself. This exclusion of liability shall not apply in the absence of properties which are expressly warranted if the purpose of the warranty was precisely to protect the customer or buyer against damage which did not occur to the delivery item itself.
- Our right of withdrawal
In the event of unforeseen events within the meaning of Section 5 of these Terms and Conditions of Sale and Delivery, insofar as they substantially change the economic significance or the content of the service or have a considerable effect on our business, and in the event of subsequent impossibility of performance, we shall be entitled to withdraw from the contract in whole or in part.
Claims for damages on the part of the customer or buyer due to such withdrawal are excluded. In this case, the customer or buyer may demand reimbursement of his expenses to the extent specified in § 284 BGB (German Civil Code). If we wish to make use of the right of withdrawal, we must notify the buyer immediately after becoming aware of the consequences of the event, even if an extension of the delivery period was initially agreed with the customer or buyer.
- Place of jurisdiction
For all disputes arising from the contractual relationship, if the customer is a fully qualified merchant, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction for our head office or for our branch office of the supplier carrying out the delivery. We are also entitled to sue at the head office of the customer or buyer.
The law of the Federal Republic of Germany shall apply.
Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
- Data protection
We would like to point out that we store and process the company and personal data of our business partners within the framework of the business relationship. Further details can be found in our data protection declaration at www.huedig.de.
Issue February 2019