General Terms & Conditions of the company HDG Bavaria GmbH
Section 1 General provisions
(1) All of our deliveries, services and offers, including those not expressly mentioned during negotiations, are made exclusively based on these terms and conditions. We do not recognise opposing terms and conditions unless we make an explicit exception or refer to a letter from our contractual partner which refers to his terms and conditions. Our terms and conditions apply to all contracts with businesses, public corporations and public separate estates, including all future business relations, even if they are not explicitly agreed upon again. They also apply to contracts with users and will be modified in this regard at the respective points. Our terms and conditions enter into effect at the very latest with the acceptance of the goods.
(2) Conditions which contradict or deviate from our conditions only apply if we have expressly agreed to their use in writing.
Section 2 Offer, conclusion of contract and documents
(1) Our salespeople are not authorised to make additional oral agreements or assurances over and above the content of the written contract. All of the conditions of this contract are stipulated in the written escrows. There are no additional oral agreements.
(2) Delivery time specifications are approximate and non-binding, unless an irrevocable agreement was explicitly agreed upon. Specifications for the delivery item (e.g. technical data, tolerance ranges, dimensions, weights etc.) and its representation are merely descriptions and designations which are only binding when we explicitly confirm them. We reserve the right to make standard technical and structural modifications to the delivery item, as long as they do not unacceptably infringe upon the purchaser or affect the serviceability of the purchase item.
(3) Our offers are subject to change up to the time at which the contract is concluded.
(4) We retain the property and copy rights for design drawings, models, estimates and other physical or non-physical business objects. They are to be handled with strict confidentiality at all times. They may not be made available to third parties without our agreement. If these obligations are breached, the purchaser is liable to the full extent of the law. Reference advertising using our name is only permissible with prior agreement.
Section 3 Prices
(1) Our prices are calculated ex works, excluding loading and packing. Unloading and storage are the responsibility of the customer. The cost of an arranged transport or other insurance is paid by the customer, barring other agreements. In the case of partial deliveries, each delivery can be billed separately.
(2) Additional work, ordered outside of the actual contract, is calculated by HDG on an administrative basis.
(3) If, on a delivery day lying four months after the conclusion of the contract, changes of the basic prices occur (e.g. price increases for raw materials, stock, wages, transportation or storage costs), we reserve the right of a corresponding price adjustment according to the information of the buyer. The price adjustment can only be made effective by us within two months of the named price increases. The individual costs and their increases must be weighted appropriately in creating the new price. Should individual costs increase, while others decrease, this must also be factored into the creation of the new price.
(4) If a price has not been agreed upon by the conclusion of the contract, prices valid on the day of delivery apply.
Section 4 Terms of payment
(1) Provided the order confirmation (or the invoice) does not indicate differently, the price (without deduction) is due for payment immediately after the invoice is received.
(2) Should the buyer fall into default of payment, we are entitled to charge default interest in the amount of 8 percentage points above the basic interest rate; if the buyer is a user, this default interest shall be in the amount of 5 percentage points above the basic interest rate. We may thereby demonstrate and charge a higher interest loss at any time. If the customer is a consumer, we have the right to charge a default interest of 5 percent above the current interest rate. In the case of delay of payment, we are also entitled to nullify stipulated rebates, cash discounts and other benefits. We retain the right to require prepayments for further deliveries; we can render all accounts receivable from the contract due for payment.
(3) Failure to uphold the terms of payment, delay or circumstances which reduce the creditworthiness of the customer result in the immediate maturity of all our requirements.
(4) The customer only has the right to offset claims when his counterclaims are legally valid, undisputed or recognised by us.
(5) The customer has the right to withhold payment if his counterclaim refers to the same contractual relationship.
(6) We are not obligated to accept exchanges and checks. In this regard, credit notes are always considered subject to redemption (for payment, not in place of fulfillment); they are carried out with the value applicable on the date on which we can dispose of the equivalent value. Exchanges are deducted with the charge of the discounts, stamp duty and bank charges, or entry charges calculated during forwarding.
(7) We retain the right to further contractual or legal claims in the case of delayed payment.
Section 5 Delivery time and obstacles to delivery
(1) The delivery period shall begin with the sending of the order confirmation, but not before the purchaser furnishes the documents, approvals and releases to be procured, as well as ny agreed prepayment and clarification of all technical questions.
(2) The delivery period is upheld if, by the time of its expiry, the delivery item has left the factory or the purchaser has been notified of its
readiness for delivery.
(3) If unforeseen obstacles arise which are out of our control and which we cannot avoid despite reasonable care appropriate to the circumstances - regardless of whether they arise for us or a subcontractor - such as acts of God (e.g. war, fire and natural disasters), delays in the delivery of essential raw materials, etc. - we reserve the right to partially or completely withdraw from the delivery contract or to extend the delivery period for the duration of the interference. The same rights apply in the case of strikes or blockades which affect us or our subcontractors. We shall inform the purchaser of these circumstances immediately and refund the payments he has made without delay.
(4) Correct and punctual deliveries by our own suppliers are reserved. We shall notify the buyer in the event of delays. Should we not
receive deliveries from our suppliers in a correct and timely manner, and we are not responsible for this, our service deadlines shall be extended by a corresponding period. Alternatively, regarding the undelivered items, we shall also be authorised in this case to declare our withdrawal from the contract. Providing this is permitted under legal regulations regarding competition, we shall cede the buyer our claims against the supplier due to the delivery not meeting the contractual agreement. Any additional damage claims and claims for reimbursement for expenses made to us by the buyer are excluded.
(5) If a firm deal was agreed upon, we are liable according to the legal stipulations; the same applies if the purchaser can claim that his interest in the fulfillment of the contract has ceased to apply because of a delay for which we are responsible.
(6) If delivery is delayed at the request of the purchaser, the resultant storage costs, beginning one month after notice of readiness for delivery, are charged to him.
Section 6 Transfer of risk, acceptance of goods and partial deliveries
(1) If the buyer is a contractor, in the case of debt collectible by the creditor, the buyer bears the risk of accidental ruin or deterioration of the wares upon singling out of the faulty wares and their agreed upon provision; the same applies in the case of debt involving transfer upon transfer of the wares to the courier; in the case of debt discharged at the creditor‘s domicile, the risk is transferred when the items leave the factory grounds; this also applies in cases where HDG has additionally undertaken delivery and installation. The same applies in the case of a creditor delay. If the buyer is a user, the buyer bears the risk of accidental ruin or deterioration of the wares also in cases of mail order purchase or in the case of debt discharged at the creditor‘s domicile only upon transfer of the wares to the buyer.
(2) Delivered objects are to be accepted by the purchaser, even if they have non-essential defects, nonwith-standing his rights from sections 8 - 10.
Partial deliveries are permissible, provided they are acceptable to the purchaser.
Section 7 Reservation of ownership
(1) The goods remain our property until they are paid for. We retain the ownership of all delivered goods in deals with businesses until the purchaser has paid all the present and future receivables resulting from the business relationship. The reservation of proprietary rights also applies to replacement and exchange parts, even when they are installed, since this does not make them essential components according to section 93 of the German Civil Code. In the case of a current account relationship (business relationship), we retain ownership until all payments from the existing current account relationship have been received; the reservation refers to the recognised account balance; in these cases the provisions of section 7 apply.
(2) If the purchaser violates the contract, especially in the case of late payment, we are authorised to take back the goods after a fruitless deadline. The mere taking back of goods represents a withdrawal from the contract only if a deadline we have set has expired fruitlessly and the withdrawal has been explicitly declared. The costs arising from the withdrawal of goods (particularly transport costs) are charged to the purchaser. We are additionally authorised to prohibit the purchaser from any resale or processing, connecting or mixing the goods delivered under reservation of ownership and revoking the collection authorisation (section 7 V). The purchaser can only demand the delivery of the goods withdrawn without an express announcement of withdrawal after complete payment of the purchase price and all the costs.
(3) The purchaser is obligated to handle the goods carefully (including the required inspection and maintenance tasks).
(4) The purchaser may neither impawn the delivered object nor transfer its title to secure a debt, nor abandon it. In the event of distraint or other actions by third parties, the purchaser must notify us immediately in writing, so that we can file suit according to section 771 of the Code of CivilProcedure. The remaining costs from this suit must be covered by the purchaser, desite a victory the legal dispute according to section 771 of the Code of Civil Procedure.
(5) The purchaser has the right to resell, process or mix the purchase item in the normal course of business; thereby, however, he already cedes all claims from the resale, processing, mixing or any other legal grounds (particularly insurance policies or impermissible actions) for the amount of the final invoice (including VAT), as well as all ancillary rights. If we are co-owners of the delivered goods due the reservation of ownership rights, the claims are ceded in proportion to the coownership share. If the delivered goods are resold along with the goods of a third party which are not the property of the purchaser, the resulting claims are ceded to us in the proportion of the final invoice amount for our goods to the final invoice amount for the third party's goods. If the ceded claim is accepted in a current account, the acceptor already cedes a corresponding portion of the balance (including the final balance) from the current ac-count to us; if interim balances were drawn upon and it has been agreed to carry them forward, the claim we are entitled to from the interim balance according to the applicable regulation is to be treated as ceded to us for the next balance. The purchaser retains the right to collect these receivables after cession, while our authorisation to collect the receivable ourselves remains unaffected. We are obligated, however, not to collect the receivable as long as the purchaser fulfils his obligations from the collected redemption, is not late in payment, and no request for the opening of insolvency proceedings has been made. If this is the case, however, the purchaser must inform us and the debtor of the request for the ceded claims, pro-vide all of the data required for collection, hand over the corresponding documents, and inform the debtor (third party) of the cession. This also applies if the purchaser resells, processes or mixes the purchase item in breach of contract.
(6) The reservation of ownership also extends to the finished products resulting from processing or modification of our goods, whereby we are considered manufacturers in these processes. If the property right of a third party remains in effect during processing or modification of his goods, the purchaser concedes co-ownership to us in proportion to the objective value of these goods; it is already agreed that the purchaser shall keep the goods safe for us in this case. If our reserved goods are connected with other movable objects or inseparably mixed, and if the other object is to be regarded as a main object, the purchaser transfers co-ownership to us to the extent that the main object belongs to him; the purchaser keeps the developed joint property safe for us. The same applies to objects created in this way as for those delivered with reservation of ownership.
(7) The purchaser also cedes the claims for the safety of our claims against him, which arise out of the connection of the delivered objects with a property against a third party. Cession occurs with priority before the rest.
(8) The securities to which we are entitled are not recorded if the estimated value of our securities exceeds the nominal value of the demands to be secured by 50%; it is incumbent on us to decide which securities were released.
(9) If the validity of the reservation of ownership is connected to particular preconditions or formalities in the country of destination, the purchaser is responsible for their fulfilment.
Section 8 Warranty of quality and title
For transactions with other firms, liability is excluded upon purchase of used items; for transactions with users, the liability is limited to one year for the purchase of used items. For the purchase of new items, the following rules apply. We are liable for defects in the delivery in the following manner, provided the purchaser is a trader, but only if the examination and notification duty from section 377 of the German Commercial Code has been properly fulfilled (notification of defects must be in writing):
(1) To the extent that there is a defect in the purchase object, we are authorised to rectify the defect or to deliver a defectfree object (supplementary performance). If the buyer is a contractor, this right is our option. For transactions with contractors, the requirement for this is that it involve a defect that is not negligable. The precondition for this in dealings with contractors is that the defect is not insignificant. The replaced parts become the property of HDG. Should one or both of the types of supple-mentary performance be impossible or disproportionate, we have the right to refuse them. We can refuse supplementary performance if the purchaser does not fulfil his payment obligations to an extent appropriate to the defect-free part of the service.
(2) Should the supplementary performance specified in paragraph 1 be impossible or fail, the purchaser has the option to either lower
the purchase price accordingly or to withdraw from the contract according to the legal regulations; this applies particularly in the case of culpable delay or refusal of supplementary performance, including when this fails for the second time. Further claims by the purchaser based on what-ever legal grounds are excluded or limited according to section 10. The same applies to claims from de-fault at the conclusion of the contract.
(3) The purchaser must give HDG the necessary time and opportunity to make repairs and replacement deliveries. HDG can, using equitable discretion, decide what work is necessary. Only in urgent cases (e.g. if operating safety is impaired or in order to prevent disproportionately large damages), for which even the setting of a short time limit is not possible, or if HDG has been delayed in repairing the defect, the buyer has the right to repair the defect himself or have it repaired by third parties and to demand reimbursement from HDG for the costs involved. We are, however, to be immediately notified of this.
(4) There is no warranty for damage due to the following causes: inappropriate or improper use, faulty installation by the purchaser or a third party, normal wear and tear, faulty or careless handling, excessive use, unsuitable operating materials, unsuitable heating material, defective construction work, inappropriate foundation, substitute material, chemical, electrochemical or electrical influences (provided we are not responsible for them), improper modifications or maintenance work by the purchaser or a third party with-out prior approval from us.
(5) Claims due to defects when purchasing new items expire in the day-to-day dealings with contractors within one year after delivery of the purchased item, providing no deliberate intent, no gross negligence and no bodily injury, damage to health or deaths can be attributed to us. For transactions with users however, the statutory period of limitation amounts to two years. For an item used according to its normal application for a structure, and which is responsible for the defectiveness of said structure, the claim only becomes invalid after five years. Claims for price reduction or the execution of the right to withdraw from the contract are excluded as soon as the supplementary performance claim has become invalid. The purchaser may, however, in the case of sentence 3, refuse to pay the purchase price insofar as he is authorised to do this on the basis of the withdrawal or reduction; in the case of disqualification from withdrawal and a subsequent refusal to pay, we have the right to withdraw from the contract. A reversal of the burden of proof is not intended.
(6) Assurances and guarantees are only effectively granted when we provide them explicitly and in writing.
Section 9 Contracts for work and services
(1) We are liable for service deficiencies based on the contract for work and services according to section 8 I - IV, VI. The purchaser is legally entitled to self-remedy of defects according to the standards of section 637 of the German Civil Code; the claim is excluded if we may also refuse the supplementary performance.
(2) The claims to supplementary performance, damages and reimbursement of expenses become invalid one year after receipt, provided we are not responsible for any damage or injuries caused intentionally or by gross negligence. This does not apply to constructions whose success consists in the provision of a planning or monitoring service; in this case the limitation period is five years. Claims for self remedy, price reduction or the execution of the right to withdraw from the contract are excluded as soon as the supplementary performance claim has become invalid and we invoke this. The purchaser may, however, in the case of sentence 3, refuse to pay the purchase price insofar as he is authorised to do this on the basis of the withdrawal or reduction; in the case of disqualification from withdrawal and a subsequent refusal to pay, we have the right to withdraw from the contract. A reversal of the burden of proof is not intended.
(3) Estimates must be refunded.
(4) For contracts regarding the delivery of items to be manufactured or created, § 8 applies.
(5) Accordingly, section 10 applies for defects in contractual services.
Section 10 Withdrawal of the purchaser and other liability on our part
(1) The legal right of withdrawal by the buyer shall - excepting the provisions in paragraphs 8 and 9 - be neither excluded nor limited.
Likewise, the legal or contractual rights and entitlements owed to us shall neither be excluded nor limited.
(2) We are liable without restriction only for damage caused intentionally or by gross negligence (including his legal representatives and assistants) and for injuries to body and health. We are also liable without restriction for the granting of guarantees and assurances, if one of the defects they include releases our li-ability. There is also no restriction on liability for dangerous corpus delicti (particularly according to the Product Liability Act). Any liability due to the basic principles of contractor recourse according to section 478 f. of the German Civil Code remains unaffected.
(3) For other negligent violations of fundamental contractual obligations (cardinal obligations), our remaining liability for foreseeable damage typical for this contract is limited. Otherwise liability is excluded, regardless of the legal grounds (particularly claims from the violation of primary and secondary obligations, reimbursement of expenses, with the exception of those according to section 439 II of the German Civil Code, impermissible acts and other tortious acts).
(4) The same (exclusions, limitation and exceptions to these) applies for claims based on fault at the conclusion of the contract.
(5) The preceding correspondingly applies to the case of reimbursement of expenses.
(6) An exclusion or limitation of our liability also applies to our legal representatives and assistants.
(7) A reversal of the burden of proof is not intended. Cardinal obligations are essential contractual obligations, i.e. such liabilities which lend the contract its character and upon which the contract partner may rely; this thus involves the essential rights and duties which make up the requirements for the fulfilment of the contract and which are indispensible for achieving the purpose of the contract.
Section 11 Place of performance, place of jurisdiction, applicable law,
contractual language and allocation of burden of proof
(1) The place of performance is the place of dispatch (works or storage location).
(2) The place of jurisdiction is our place of business, provided the purchaser is also a salesperson, legal person under public law or a public separate estate. The same applies if the purchaser has no general place of jurisdiction in the country. We have the right to bring an action against the purchaser at other admissible places of jurisdiction.
(3) With regard to all claims and rights from this contract, the non-unified laws of the Federal Republic of Germany (German Civil Code, German Commercial Code). Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. The language of the contract is German.
(4) The legal allocation of the burden of proof shall not be altered by any of the clauses agreed upon in all of the conditions.
Section 12 Other provisions
(1) Changes to the contract can only become effective with our approval.
(2) Should the individual provisions of these conditions be completely or partially invalid or null and void, the rest of the provisions remain unaffected by this. The contractual partners are obligated to agree to a regulation through which the economic spirit and purpose of the invalid or null and void provision is substantially achieved.
(3) We handle all of the purchaser's data exclusively for transactional purposes according to the applicable data protection regulations. The buyer also has the right, upon written request, of information regarding his personal data which has been compiled, processed and used.
(4) All concepts and rules are to be understood as neutral regarding sex and otherwise free of discrimination in the sense of the General Equal Treatment Act (AGG).