GENERAL CONDITIONS OF SALE
I. General – scope of application
(1) These terms and conditions apply to all of our business relationships with our contractual partners. The terms and conditions only apply if the contractual partner is an entrepreneur in accordance with Section 14 of the German Civil Code, a legal entity of public law or a special fund under public law.
(2) The terms and conditions apply in their respective valid version as a framework agreement to all further contracts with the same contractual partner without requiring a separate indication in each individual instance. The contracting parties will be notified about any changes to the terms and conditions immediately.
(3) Our terms and conditions apply exclusively. Conflicting, deviating or supplementary general terms and conditions of the contractual partner shall only become part of the contract if and insofar as we have expressly agreed to their validity in writing. This requirement of consent shall apply in any case, in particular also if we carry out the contract without reservation in the knowledge of conflicting or deviating general terms and conditions of the contractual partner.
(4) References to the validity of legal regulations have only clarifying meaning. Hence, also without such a reference, all statutory provisions apply as far as they haven’t been modified or explicitly excluded by these terms and conditions.
II. Modifications and Amendments
(1) Individual agreements made with the contractual partner in individual cases, including collateral agreements, supplements and amendments, shall take precedence over the general terms and conditions. Either a written contract or alternatively our written acknowledgment shall be authoritative for the effectiveness of such agreements.
(2) We reserve the right to make technical changes to the products sold by us which increase or maintain their value and which do not restrict their functionality until delivery. Unless expressly agreed otherwise, we shall be entitled to determine technical performance characteristics or dimensions in delivery in compliance with customary tolerance values. The inclusion of customary tolerance values shall be deemed agreed.
(3) Legally relevant declarations and notifications to be made to us by the contractual partner after conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be effective.
(4) Our sales employees are not authorized to make verbal agreements that go beyond the content of the written contract.
III. Conclusion of contract
(1) Our quotations are made freely and are non-binding. This also applies if we provided the contractual partner with catalogues, technical documentation (such as drawings, plans, calculations, costings and references to DIN Standards) or other forms of product specifications or documents, including in electronic form.
(2) We reserve the rights of ownership and copyright in illustrations, drawings, calculations and other documents. They must not be made accessible to third parties; this applies also to all information regarding our products or other services obtained since the beginning of the contract negotiations. The contractual partner requires our explicit written agreement before passing these documents on to third parties.
(3) The order placed by a contractual partner represents a binding contractual offer. Unless otherwise stipulated in the order, we are entitled to accept the contractual offer within twelve working days.
(4) Acceptance can also be declared by delivery of the goods to the contractual partner.
(5) Information within the meaning of Para (1) as well as public statements made by us, the manufacturer or manufacturer’s agents only become part of the performance specification if specific reference is made to them in the contract.
IV. Prices and Terms of Payment
(1) Our prices are calculated in EURO “ex works” according to Incoterms 2010 plus packaging, freight, insurance and the statutory value-added tax on the date of the invoice.
(2) Should the costs for material, consumables, wages and salary which form the basis for our calculation, change after the conclusion of the contract, a consensus-based price adjustment remains possible.
(3) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply.
(4) The purchase price is due and payable within 30 days from invoicing and delivery or acceptance of the goods in cash or by bank transfer. If vacuum mounting systems have been ordered, the purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. Payments shall only be deemed made as of the day on which we can dispose the amount. The contractual partner defaults on the expiration of the payment deadline. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the default.
(5) Different means of payment require a prior written, explicit agreement. The costs arising will be borne by the contractual partner.
(6) The deduction of a discount shall require separate written approval.
(7) The contractual partner shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed.
V. Delivery period and delay in delivery
(1) Delivery periods begin with the day of our acknowledgement of the order; however, not before clarifying all business and technical details as well as the approval of our execution documents by the contractual partner and not before the agreed down payment has been received.
(2) The delivery period shall be deemed observed if the passing of risk according to Section VII. has occurred until the end of the delivery period.
(3) If deliveries are agreed on an at call basis, the call for delivery has to be made two weeks prior to the desired date of delivery. Our confirmation of the date of delivery is decisive. If a delivery is not called or specified, we are, after futile expiration of a deadline, entitled to specify or deliver the goods at our discretion or to withdraw from the part of the contract that is in arrears.
(4) The specification of performance deadlines is always subject to the contractual cooperation of the contractual partner. Compliance with our performance obligation presupposes the timely and proper fulfilment of the contractual partner’s obligations. If the contractual partner is in default with the payment of an earlier service, we shall be entitled to withhold our services. The contractual partner cannot derive any rights from the justified retention on our part.
(5) In the event that we are unable to comply with a binding delivery period for reasons that are not attributable to us, we will notify the contractual partner without undue delay and inform about the new expected delivery period. If the service or good is also not available within this new delivery period, we are entitled to wholly or partially withdraw from the contract. A case of non-availability of any good or services in this sense particularly includes our suppliers failing to supply us in good time. This also applies if neither we nor our suppliers can be hold responsible for the non-availability.
(6) A reminder with a reasonable period of grace by the contractual partner is necessary for the occurrence of the delay.
VI. Scope of service
(1) The scope of our service is defined by our written order confirmation. We reserve the right to make alterations to construction, shape and colour in response to improvements in technology or changed legal requirements as far as the alterations are insignificant or are reasonable for the contractual partner.
(2) We shall be entitled to undertake and charge for partial deliveries and performances, provided they remain without influence on the intended scope and time of delivery and are reasonable for the contractual partner.
VII. Delivery, passing of risk, acceptance, delay in acceptance
(1) Unless otherwise stipulated in the order confirmation, delivery ex works according to Incoterms 2010 is agreed, which is also where the place of performance is.
(2) At the demand and the expense of the contractual partner, the products will be delivered to the destination. Unless otherwise agreed, we shall choose the means and way of transport without being responsible for choosing the quickest and most cost-effective way of delivery. Costs for packaging required for transport by train or freight forwarder will be invoiced. We are not obliged to take out insurance. If the contractual partner wishes to insure the shipment, we will take out insurance regarding the risks named in writing by the contractual partner at the cost of the contractual partner, in case of a timely notification.
(3) Goods notified as ready for dispatch are to be accepted without undue delay. Also, goods with minor defects are to be accepted by the contractual partner, without prejudice to rights according to Section X.
(4) The risk of accidental deterioration or accidental loss passes to the contractual partner with allocation (ex-works according to Incoterms 2010) at the latest. In case of shipment of the goods on the contractual partner’s request, the risk of accidental deterioration or accidental loss as well as the risk of delay passes with handover of the goods to the carrier, freight forwarder or other person or entity tasked with the shipment. This also applies, if we, by way of exception, bear the cost of shipment.
(5) It is deemed equivalent to the handover or acceptance if the contractual partner is in default of acceptance.
VIII. Raw materials and production
(1) We shall not be liable if the contractual partner provides incomplete or incorrect information, especially regarding colours, materials, tolerances, surface finishes, anchor bases, loads, dimensions, required load capacities, installation surfaces, traffic routes etc. As far as the production or the delivery of contractual goods is dependent on information or technical data supplied by the contractual partner, we have no obligation to review. We are entitled to use technical data or product descriptions, product features for production and delivery of the contractual goods. The use does not constitute a breach of duty of our party.
IX. Use of product
Any use or processing of the products supplied by us must be carried out exclusively within the scope and within the limitation of our technical operating instructions, the details on the technical data sheets, safety data sheets and assembly instructions and the intended use defined therein. Any use for other purposes, in particular for purposes which the contractual partner undertakes beyond the intended use defined in the operating instructions shall be at the exclusive risk of the contractual partner.
X. Duty to inspect
The contractual partner is obliged to check the suitability of the products supplied by us for his specific applications before installation or further processing. We expressly point out that the functionality and usability of the products supplied by us must be checked in each individual case. Declarations by Hydewa regarding the suitability of the products supplied by us, in particular regarding the connection with materials determined by the contractual partner, shall only be binding if we have expressly confirmed them in writing, by fax or e-mail for the specific purpose of use. All recommendations made by our company or information provided in the technical data sheets are based only on tests for the general suitability of the product and do not contain any statement for the usability of the products in specific applications, in particular in installations and in connection with other materials.
X. Warranty
(1) A special intended use for the object of the contract shall only be deemed to have been agreed if an express written agreement has been made between us and the customer in this respect.
(2) In the absence of such an agreement, we warrant that the contractual object is suitable for customary use, and its nature is such as is normal for goods of the same type and as a customer can reasonably expect for goods of the same typ.
(3) Properties shall only be warranted by us if they have been assured in writing. A mere reference to technical standards merely contains a more detailed description of the service and the goods and does not constitute an agreement on the suitability of the goods which goes beyond the normal use of the subject matter of the contract.
(4) The buyer is obliged to inspect the goods purchased from us for defects immediately after delivery and to notify us of any recognizable defects within a period of 5 working days after receipt. In the case of products that the contractual partner wishes to process further and/or combine with other products, the contractual partner must carry out a function test before processing. In the event of failure to comply with the time limit, the customer shall forfeit subsequent performance or warranty claims against us. For hidden defects the legal regulation of § 377 HGB applies with the proviso that detected defects must be reported immediately, at the latest within 5 working days.
(5) The buyer is not entitled to process goods for which a defect has been notified without our consent. In the case that our goods are processed further without our consent, all claims arising on account of or due to the notified defects or as a result of further processing shall be excluded.
(6) In the case of a proper notice of defect or any other breach of duty for which we are responsible, we shall be entitled and obliged to remedy the notified defect or a breach of duty for which we are responsible, we shall be entitled and obliged to remedy the notified defect or a breach of duty by subsequent performance. The customer shall only be entitled to demand a reduction in the purchase price or to withdraw from the contract or to claim damages instead of performance if two attempts at subsequent improvement have failed despite the setting if a reasonable period of grace.
XI. Limitation of liability
(1) We shall be liable without limitation for damages to life, limb and health resulting from a negligent or intentional breach of duty by our legal representatives or vicarious agents, as well as for damages covered by liability under the Product Liability Act and for all damages resulting from intentional or grossly negligent breaches of contract as well as fraudulent intent on the part of our legal representatives or vicarious agents.
(2) Insofar as we have given a quality and/or durability guarantee for the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage which is based on the absence of the guaranteed quality or durability, but which does not occur directly on the goods if the risk of such damage is clearly covered by the quality and durability guarantee.
(3) We shall also be liable for damages caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, the observance of which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, we shall only be liable insofar as the damages are typically associated with the contract and foreseeable. We shall not be liable for simple negligent breaches of collateral obligations that are not essential to the contract. The limitations of liability contained in sentences 1 – 3 shall also apply insofar as liability for legal representatives, executive employees and other vicarious agents is concerned.
(4) Any further liability is excluded regardless of the legal nature of the asserted claim. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, co-workers, representatives and vicarious agents.
XII. General Limitation Period
Claims that are subject to the regular three-year limitation period shall become statute-barred two years after they arise. Claims arising from warranty, fraudulent intent, tort or product liability law shall remain unaffected. Section X, paragraphs 7 to 10 shall apply mutatis mutandis.
XIII. Retention of title
Until full payment of all present and future claims arising from the purchase contract and the current business relationship, we reserve title to the goods sold. This shall also apply if claims have been included in a current invoice and the balance has been struck and acknowledged. The contractual partner is obliged to handle the delivered goods with care and to insure them against the usual risks (fire, water, storm, theft).
XIV. Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany, including the UN Convention on Contracts for the International Sale of Goods (CISG), shall apply exclusively to these terms and conditions and the entire legal relationship with the contractual partner.
(2) If the contractual partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Guteneck. However, we are also entitled to bring an action at the general place of jurisdiction of the contractual partner.
(3) If individual provisions should be invalid or if the terms and conditions contain loopholes, the validity of the remaining provisions shall not be affected thereby. Instead of the ineffective provision, the effective provision shall be deemed agreed which corresponds to the meaning and purpose of the ineffective provision. In the event of loopholes, the provision shall be deemed agreed which corresponds to what would reasonably have been agreed in accordance with the sense and purpose of the terms and conditions had the parties considered the matter from the outset.