General Terms and Conditions of Sale of HAPRO Industriegeräte GmbH
Sec. 1 Scope of application, form
(1) These General Terms and Conditions of Sale apply to all our business relations with our customers ("Buyers"). The General Terms and Conditions only apply if the purchaser is an entrepreneur (Sec. 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law. According to Sec. 14 German Civil Code (BGB), an entrepreneur is a natural or legal person or a partnership with legal capacity, which acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.
(2) These General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Secs. 433, 651 German Civil Code (BGB)). Unless otherwise agreed, the version of our General Terms and Conditions valid at the time of the Buyer's order or the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our General Terms and Conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if we have expressly agreed to their validity and to the extent agreed. This requirement of consent applies in all cases, even if we carry out delivery to the buyer without reservation in full knowledge of the purchaser's general terms and conditions, for example.
(4) Individual agreements made in specific cases with the buyer (including collateral agreements, supplements and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to proof to the contrary, the content of such agreements is governed by a written contract or our written confirmation.
(5) Legally relevant declarations and notifications of the buyer with regard to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. as a signed document or simple text form (e.g. letter, email, fax). Formal legal requirements and other evidence, in particular where there is doubt as to the legitimacy of the declarant, remain unaffected.
(6) References to the validity of statutory provisions are only intended to clarify the provisions. As a result, the statutory provisions apply even without that clarification insofar as they are not directly amended or expressly excluded in these Terms & Conditions.
Sec. 2 Conclusion of the contract
(1) Our quotations are non-binding and subject to change unless otherwise expressly stated in the quotation. The same applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or literature – whether in printed or electronic form – for which we reserve ownership rights and copyrights. All these documents are intended only to describe and explain the goods referred to therein. They are as a result not an integral part of the contract. We consider ourselves bound for two weeks by quotations made by us.
(2) An order placed by the buyer for the goods is deemed to be a binding offer to buy. Unless otherwise stated in the order, we are entitled to accept this contractual offer to buy within 4 weeks of its receipt by us.
(3) Acceptance by us can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
Sec. 3 Delivery deadline and delays in delivery
(1) The delivery time is agreed individually or specified by us on acceptance of the order. If this is not the case, the delivery period is 12 weeks from the conclusion of the contract.
(2) If we are unable to comply with binding delivery times for reasons for which we are not responsible (non-availability of service), we will notify the buyer immediately thereof and at the same time inform the buyer of the expected new delivery time. If performance is not possible within the new delivery period, we reserve the right to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the buyer. In particular, non-availability of the service in this context is deemed to be delayed delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.
(3) The occurrence of a delay in delivery by us shall be determined in accordance with the statutory provisions. In any case a reminder by the buyer is necessary.
(4) The rights of the buyer according to Sec. 9 of these Terms & Conditions and our legal rights, in particular in the case of an exclusion of the obligation to perform (e.g. due to performance and/or remedial performance being impossible or not feasible), remain unaffected.
Sec. 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods can be shipped to a location other than the premises of the buyer. Unless otherwise agreed, we reserve the right to determine the type of shipment (in particular the forwarding company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest when the goods are handed over. In the case of sale to a location other than the premises of the customer, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall pass upon handover of the goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment. Where acceptance has been agreed, that is the point at which risk is transferred. In addition, acceptance testing is subject to German laws on individual contracts of work ("Werkvertragsrecht"). The handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the buyer is responsible, we reserve the right to demand compensation for the resulting damages including additional expenses (e.g. storage costs). In this event, we charge lump-sum compensation in the amount of 5% of the sales price. The amount of damages payable may deviate from this if we as seller can demonstrate that the actual damages amounted to more or if the buyer can demonstrate that the actual damages amounted to less.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, appropriate compensation, termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims. The buyer is entitled to prove that we have incurred no damage at all or only considerably less damage than the above flat rate.
Sec. 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value-added tax.
(2) In the case of delivery to a location other than the premises of the buyer (Sec. 4(1)), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. If no agreement has been made on the transport costs, the buyer shall bear the actual transport costs incurred. Any and all customs duties, fees, taxes and other public charges shall be borne by the buyer.
(3) The purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. However, even during an existing business relationship, we reserve the right at any time to make delivery in whole or in part only against advance payment. We reserve this right at the latest with order confirmation.
(4) The buyer is in default on expiry of the aforementioned payment period. The purchase price incurs interest during the period of default at the standard statutory interest rate applicable and amended from time to time. This without prejudice to any other remedies. If the buyer is a company or entrepreneur, our legal claim to commercial interest (Sec. 353 German Commercial Code (HGB)) remains unaffected.
(5) The buyer is only entitled to set-off or retention rights to the extent that its claim is legally enforceable, undisputed or acknowledged by us. In the event of defects in the delivery, the buyer's rights to a counter-claim remain unaffected, in particular in accordance with Sec. 8(6) of these General Terms and Conditions.
(6) If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is at risk due to the buyer's inability to pay, we shall be entitled in accordance with the statutory provisions to refuse performance and - if necessary after setting a deadline - to withdraw from the contract (Sec. 321 German Civil Code (BGB)). In the case of contracts for the manufacture of custom-made items, we can declare our withdrawal immediately; the statutory provisions on the lack of need for specification of a remedial period remain unaffected.
(7) Cash discounts may only be deducted if explicitly agreed in writing. A cash discount may also shown in our invoice.
Sec. 6 Retention of title
(1) Until full payment of all our current and future claims resulting the purchase contract and an ongoing business relationship (secured claims), we reserve title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security prior to full payment of the secured claims. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if the goods belonging to us are seized by third parties (e.g. distraint order).
(3) In the event of breach of contract by the purchaser, in particular non-payment of the purchase price due, we reserve the right to withdraw from the contract in accordance with statutory provisions and/or demand the return of the goods on the basis of retention of title. A demand for surrender of the goods is not tantamount to declaration of withdrawal from the contract; we are entitled merely to demand surrender of the goods and reserve the right to withdraw from the contract. If the buyer fails to pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the purchaser a reasonable grace period for payment or if such setting of a grace period is dispensable under the statutory provisions.
(4) Unless and until revoked in accordance with (c) below, the buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, the ownership rights of those third parties remain in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. The product thus created is subject to the same conditions as the goods themselves delivered under retention of title.
(b) The buyer herewith assigns to us by way of security any claims against third parties arising from the resale of the goods or the product as a whole or in the amount of our co-ownership share pursuant to the preceding paragraph. We hereby accept this assignment. The obligations of the buyer mentioned in para. 2 shall also apply with regard to the assigned claims.
(c) Besides us, the buyer remains authorised to collect such claims. We undertake not to collect the claim as long as the buyer meets its payment obligations towards us, there is no restriction in his ability to pay and we do not assert the retention of title in accordance with paragraph 3. If this should, nevertheless, be the case, we retain the right to insist that the buyer communicate to us the amounts assigned and their debtors, including all details required to collect the amounts, produce all documents required for collection procedures and communicate to the debtor (Third Party) that the assignment is in force. In addition, we are also entitled to revoke the buyer's authority to sell and process the goods subject to retention of title.
(d) If the realisable value of the collateral exceeds our claims by more than 10%, we shall release collateral of our choice at the buyer's request.
Sec. 7 Application-specific advisory services
(1) Insofar as we provide consulting or advisory services for the area of application etc. of our products, this is to the best of our knowledge and ability based on our previous experience. We are unable to accept any liability or warranty for application-specific consulting. Any details and information provided by us on the suitability and application of our products do not release the customer from the obligation to carry out tests and trials.
(2) Information on the characteristics and quality of our products and/or technical application information shall only amount to the assumption of a warranty in the legal sense if we have expressly declared the assumption of a warranty in writing.
Sec. 8 Complaints by the buyer about defects
(1) Unless otherwise specified below, statutory provisions shall apply to the buyer's rights in the event of material or legal defects (including incorrect delivery, incorrect delivery quantities, improper assembly or faulty assembly or installation instructions). Where the buyer of the goods is a final consumer, statutory special provisions remain unaffected (supplier recourse pursuant to Secs 478, 479 German Civil Code (BGB)).
(2) The basis of our liability for defects the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been made public by us (in particular in catalogues or on our Internet website) shall be deemed to be agreed statements on the quality of the goods.
(3) Insofar as the quality has not been agreed, assessment shall be made in accordance with the statutory provisions as to whether a defect exists or not (Sec. 434(1) S.2 and 3 German Civil Code (BGB)). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) Claims by the buyer relating to defects presuppose that it has fulfilled its statutory obligations to inspect and notify the existence of defects (Secs. 377, 381 German Commercial Code (HGB)). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified thereof without delay. If the purchaser fails to inspect the goods properly and/or to notify us of any defects, our liability for any defects not reported, or not reported in a timely manner, or not properly reported, shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we are entitled initially to choose whether we will provide performance by remedying the defect (remedial performance) or by supplying a defect-free item (replacement delivery). Our right to refuse remedial performance under the statutory conditions remains unaffected.
(6) We reserve the right to make the remedial performance dependent on the buyer paying the purchase price as invoiced. However, the buyer is then entitled to retain a reasonable part of the purchase price that is in proportion to the defect.
(7) The buyer shall give us the time and opportunity required for the remedial performance to be rendered, in particular to hand over the goods subject of the complaint for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions. Remedial performance does not include the removal or deinstallation of the defective item or its reinstallation if we were not originally obliged to install it.
(8) We shall bear the expenses for the inspection and remedial performance, in particular transport, travel, labour and material costs, if a defect is, in fact, detected. Otherwise, we reserve the right to demand reimbursement from the buyer for the costs incurred as a result of an unjustified demand to remedy a defect (in particular testing and transport costs), unless it was impossible for the buyer to detect the fact that the item was not defective.
(9) We shall not bear the costs of deinstalling, dismantling or installation costs for goods already delivered and installed. The provisions of Sec. 439(III) German Civil Code (BGB) are expressly excluded.
(10) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for expenses considered objectively to be necessary. We must be notified immediately, if possible in advance, of any such actions by the buyer. The buyer is not entitled to carry out such remedial action if we are entitled to refuse remedial action in compliance with corresponding legal provisions.
(11) If remedial performance fails or a reasonable period set by the buyer for remedial performance expires without success or is dispensable according to the statutory provisions, the buyer may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(12) Claims by the buyer for damages or reimbursement of unnecessary expenditure only exist as defined in Sec. 8 in the event of defects and are otherwise excluded.
Sec. 9 Other liability
(1) Unless otherwise stated in these General Terms and Conditions and the following provisions, we shall only be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall only be liable for damages – for whatever legal reason – within the restrictions of culpa in contrahendo (liability for negligence) in cases of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), only in the following cases:
a) Damages resulting from injury to life and limb or health generally
b) Damages arising from a significant breach of an essential contractual obligation (the fulfilment of which is essential for the proper execution of the contract and the observance of which the contractual partner regularly relies on and is entitled to rely on); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The restrictions of liability resulting from para. 2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. These restrictions shall not apply if we have fraudulently concealed a defect or assumed a warranty for the quality of the goods and for claims by the purchaser under the Product Liability Act.
(4) In the event of a breach of duty which does not consist in a defect, the buyer may only withdraw from or terminate the contract if we are responsible for that breach of duty. A free right of termination by the buyer (especially according to Secs. 651, 649 German Civil Code (BGB)) is excluded. Otherwise, the applicable legal provisions and consequences shall apply.
Sec. 10 Statute of limitations
(1) Notwithstanding Sec. 438(1)3 German Civil Code (BGB), the general limitation period for claims arising from material defects and deficiency in title shall be one year from delivery. If acceptance testing has been agreed, the limitation period shall commence upon acceptance.
(2) If, however, the goods are a building or an object which has been used for a building in accordance with its usual use and which has caused a defect in the building (building material), the limitation period shall be five years from delivery in accordance with statutory regulations (Sec. 438(1)2 German Civil Code (BGB)). Other special statutory regulations regarding the statute of limitations (in particular Sec. 438(1) 1, (3), Secs. 444, 479 German Civil Code (BGB)) shall also remain unaffected.
(3) The periods of limitation of sales law including the above extension apply – to the extent permitted by law – to all claims for defects under the contract. Insofar as we are also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period (Secs. 195, 199 German Civil Code (BGB)) apply here, unless the application of the limitation periods of sales law in individual cases would lead to a longer limitation period.
Sec. 11 Choice of law and court of jurisdiction
(1) All relationships between us and the buyer are subject exclusively to the laws of the Federal Republic of Germany and the provisions of the UN commercial codes and international civil law are hereby excluded.
(2) If the purchaser is a company or entrepreneur as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction, including international jurisdiction, for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Wuppertal. The same applies if the buyer is an entrepreneur within the meaning of Sec. 14 German Civil Code (BGB). In all cases, however, we shall also be entitled to institute legal proceedings at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the buyer's general place of jurisdiction. Higher-level statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
Valid as at: March 2018