General Terms and Conditions of Sale and Delivery in business transactions with companies
Effective: January 2012
I. General information
1. All deliveries and services from contractual relationships between Haugg Holding GmbH and its German subsidiaries Haugg Kühlerfabrik, Haugg Industriekühler GmbH and Schwarzwäldermetallwarenfabrik GmbH (hereinafter referred to as « Supplier ») and their customers (hereinafter referred to as « Purchaser ») who are entrepreneurs within the meaning of § 310 BGB (German Civil Code),
are subject to the following General Terms and Conditions of Sale and Delivery (hereinafter referred to as « GTC »):
1.1 These GTCs apply in particular to sales contracts, contracts for work and contracts for work and materials.
2. These Terms and Conditions of Sale apply exclusively; the Supplier hereby objects to any conflicting or deviating General Terms and Conditions of Purchase of the Purchaser. They shall only become part of the contract if and insofar as they comply with these GTCs or if the Supplier has expressly acknowledged them in text form. Even a repeated sending of the Purchaser’s General Terms and Conditions of Purchase within the framework of the current business relationship does not imply their acceptance by the Supplier for current and future business transactions, nor does the performance of these transactions themselves. Acceptance of the deliveries and services by the Purchaser shall be deemed to be acceptance of these GTCs for the duration of the entire business relationship.
3. All collateral agreements, amendments and supplements to the contract between the Supplier and the Purchaser require confirmation by the Supplier in text form in order to be valid, unless and insofar as the written form is not provided for in these GTCs for certain declarations. The same applies to any verbal agreements or promises made by employees of the Supplier, as well as to the assurance of properties.
4. Supplier and Purchaser are hereinafter jointly referred to as « Contracting Parties ».
II. Conclusion of contract and delivery
The Supplier’s offers are subject to change without notice with regard to price, delivery date and other contents. The sending of catalogues, price lists and brochures as well as their presentation on the Internet does not oblige the Supplier to conclude a contract.
1.2 Dimensions and weight information in catalogues and brochures are always to be regarded as non-binding initial information. Only the values stated in the order confirmation are binding.
1.3 The manufacturer of the goods reserves the right to make changes in design or form, deviations in colour shade as well as changes in the scope of delivery until delivery, provided that the changes or deviations are reasonable for the Purchaser, taking into account the interests of the Supplier.
If the Supplier or the manufacturer uses signs or numbers to designate the order or the ordered item, no rights can be derived from this alone with regard to the substantiation of the item of purchase or the scope of delivery.
1.3.2 Information provided by the Supplier on dimensions relating to the accuracy of fit is always provided with regard to the subsequent professional installation of the delivered part, i.e. by a specialist workshop or other expert. Therefore, even universal parts delivered which deviate slightly from the agreed dimensions or values, but which can be installed in a vehicle in accordance with the generally recognised rules of technology and in a functional manner, comply with the contractual specifications, unless and insofar as the Purchaser does not expressly refer to compliance with certain dimensions as mandatory contractual content in text form when ordering. These deviations therefore do not constitute a defect in the delivered goods.
1.4 The Supplier reserves the property rights and copyrights to samples, cost estimates, drawings, etc. They may not be made available to third parties without the Supplier’s separate consent.
1.5 Partial deliveries are permissible to a reasonable extent. If the Purchaser is not interested in the partial delivery, he may withdraw from the contract by setting (in text form) a grace period of at least 14 working days.
2.1 The contract is generally concluded by means of an order (offer) and a subsequent confirmation of order issued by the Supplier in text form (acceptance).
2.2 The Supplier can accept orders and purchase orders within 14 days.
2.3 If an order confirmation in text form is not issued, the contract is concluded by delivery of the ordered goods. Silence on the part of the Supplier with regard to the order does not constitute acceptance.
3.1 Delivery is always « ex works ».
3.1.1 The transfer of risk to the Purchaser takes place when the goods are handed over by the Supplier or his vicarious agents to the carrier, collector or when the goods are loaded onto a Supplier’s transport vehicle, at the latest, however, when the goods leave the warehouse of the Supplier or his sub-supplier, if the latter is to deliver directly to the Purchaser at the discretion of the Supplier.
3.1.2 If dispatch is delayed due to circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser from the day of readiness for dispatch. At the express request (text form) and at the expense of the Purchaser, the Supplier will insure the goods against damage during the period of delay.
3.2 The transport costs shall be borne by the Purchaser. The mode of dispatch is at the discretion of the Supplier, unless a special mode of dispatch has been expressly agreed in writing.
3.3 The Supplier shall not take out transport insurance unless expressly requested by the Purchaser and agreed accordingly in writing between the contracting parties. The costs of the transport insurance shall be borne by the Purchaser.
4.1 All delivery obligations of the Supplier are subject to due delivery by our sub-suppliers.
4.1.1 A corresponding declaration by the sub-supplier shall be deemed sufficient proof that the Supplier is prevented from delivering through no fault of his own.
4.1.2 If goods are not available, the Supplier reserves the right to withdraw from the contract. In this case, the Supplier will inform the Purchaser immediately about the unavailability and will immediately refund any consideration paid by the Purchaser.
4.2 Delivery times stated in the order confirmation are generally not binding delivery dates, but only indicate the expected delivery date. Exceeding the expected delivery date therefore does not constitute a delay in delivery. Only a reminder with an appropriate deadline set by the Purchaser is necessary for this.
4.2.1. A fixed delivery date or a binding delivery period requested by the Purchaser must be expressly stated as such by the Purchaser in text form when placing the order. Otherwise, a fixed delivery date shall not be deemed agreed upon at acceptance by the Supplier.
4.2.2 If, beyond the fixed delivery date, the timeliness of the performance is of decisive importance for the interest of the Purchaser, i.e. if the performance is no longer of interest to him when the delivery period is exceeded, the Purchaser shall expressly notify the Supplier of this in text form when placing the order. Otherwise, a fixed delivery date shall not be deemed agreed upon at acceptance by the Supplier.
5.1 The observance of the delivery obligations by the Supplier presupposes that the Purchaser has fulfilled all obligations incumbent on him in this respect. If the order is a work to be manufactured according to his requirements, he shall be particularly subject to specification and cooperation obligations in technical matters during the production period. If the customer does not fulfil his obligations or is late in doing so, this extends the delivery time, which is also agreed as binding accordingly.
5.2 If non-compliance with the delivery time is due to force majeure, industrial disputes or other events beyond the Supplier’s control, the delivery time shall be extended accordingly. The Supplier will inform the Purchaser of the beginning and end of such circumstances as soon as possible. If the interruptions cause performance to be delayed for more than four months, the Purchaser may cancel the contract. Other rights to rescind the contract remain unaffected.
III. Prices and Payment
The Supplier’s prices for the goods in catalogues, price lists, advertising, etc. and in the order confirmation are in Euro and ex warehouse, excluding packaging, insurance and transport. Transport, insurance and packaging costs are shown separately on the invoice. In the following, « purchase price » shall also be understood as the remuneration for work.
Statutory value-added tax is not included in the Supplier’s prices; it is shown separately in the invoice at the statutory rate on the day of delivery.
3.1 The purchase price is due for payment upon delivery (purchase contract) or acceptance (contract for work and labour). Acceptance shall be effected by signing an acceptance protocol, at the latest, however, upon commissioning or use (processing/installation, etc.) of the delivered work.
3.2 The Supplier shall invoice the Purchaser for the purchase price or remuneration for work and any other costs (transport, packaging, insurance, etc.) in accordance with the statutory requirements.
The invoice amount is payable by the Purchaser within 30 calendar days after delivery and invoice date (payment date). If payment is made within ten calendar days of delivery, the Supplier shall grant the Purchaser a 2% discount. Payment shall generally be made by transfer to the Supplier’s account stated in the invoice or in cash.
3.3 If the payment deadline is exceeded, the Purchaser is in default of payment without a separate reminder. During the delay in payment, interest in the amount of 8 % above the base interest rate p.a. shall be due.
3.4 If, in exceptional cases, cheques or bills of exchange are accepted, payment shall not be deemed to have been made until they have been cashed and the corresponding amounts received.
4.1 Payments made by the Purchaser shall first be used to cover costs, then interest and with the surplus to settle the oldest debt items from the business relationship.
4.2 In the event of cessation of payments or an application for the opening of insolvency proceedings against the assets of the customer, all claims of the Supplier arising from the business relationship shall become due for payment immediately, without the need for a separate due date. In this case, the customer is also entitled to make outstanding deliveries only against advance payment or appropriate security and otherwise, if these are not made, to withdraw from the contract after the unsuccessful expiry of an appropriate grace period.
4.3 The Purchaser may only offset claims for purchase price or remuneration for work and labour of the Supplier against undisputed or legally established due counterclaims. The assertion of rights of retention is only possible insofar as these are based on claims from the relevant purchase or work and labour contract.
IV. Retention of title
1.1 The Supplier retains title to all goods delivered by him until all claims arising from the business relationship with the Purchaser have been settled.
1.2 In the case of a current account, the retention of title shall be deemed as security for the Supplier’s balance claim.
1.3 Insofar as the value of all security interests that are due to the Supplier exceeds the amount of all secured claims by more than 20 percent, the Supplier will release a corresponding portion of the security interests at the Purchaser’s request. The selection of the securities to be released is the responsibility of the Supplier.
The processing of the delivered goods by the Purchaser shall always be performed for the Supplier. If the delivery item is processed, converted or combined with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the invoice value of the delivery item to the purchase price of the other items at the time of processing or combination. The Item created by the processing or combination is considered to be the reserved goods. The Purchaser shall store the new item for the Supplier with the due diligence of a prudent businessman.
The Purchaser is revocably entitled to resell the delivery item in the normal course of business. However, he assigns to the Supplier as security all future claims from the resale against his buyer with all ancillary rights – including any balance claims – up to the amount of the invoice value of the processed reserved goods, without the need for any later special declarations. It is irrelevant whether the resold goods have been processed or not. If the retained-title merchandise is re-sold or sold together with other items without an individual price being agreed for the retained-title merchandise, the Purchaser shall assign to the Supplier, with precedence over the remaining receivables, that part of the total price claim that corresponds to the price of the retained goods as invoiced by the Supplier. If the Supplier is able to convey a vested interest, the Purchaser is to make valid his rights with regard to the customer and to pass on any information and the necessary documents.
4.1 The Purchaser is not entitled to inseparably mix goods subject to retention of title with his own stock or the stock of third parties with the consequence that the sole ownership of the goods subject to retention of title reserved in favour of the Supplier expires.
4.2 Until the complete transfer of ownership, the Purchaser will mark the delivered goods, which he is storing at his premises, in a suitable manner as the property of the Supplier, in order to enable separation in the event of insolvency.
4.3 The Purchaser shall treat the goods to which the retention of title applies with the care of a prudent businessman. In particular, he is obliged to sufficiently insure them at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the Purchaser must carry this out in good time at his own expense.
During the existence of the retention of title, the Purchaser is prohibited from pledging or assigning the goods as security.
6.1 The Purchaser is authorised to collect assigned claims from the resale of the goods to his buyers.
6.2 In case of an important reason, especially in case of payment arrears, suspensions of payments, initiations of insolvency proceedings, (insolvency, settlement, total enforcement) or where comparable justified indications are given providing grounds for assuming the insolvency of the Purchaser, the Supplier is entitled to revoke the Purchaser’s right to collect receivables. In addition, after prior warning of the disclosure of the assignment by way of security or the realisation of the assigned claims, the Supplier may, after observing a reasonable period of notice, disclose the details of the assignment by way of security and realise the assigned claims.
6.3 If the Purchaser does not fulfil his payment obligations, he is obliged, at the Supplier’s request, to disclose the assignment to any third party buyers, to provide the Supplier with the information required to assert his rights and to hand over documents.
The Supplier shall release the securities held by him to the extent that their value exceeds the claims to be secured by more than a total of 20%.
If the Purchaser violates his obligation to handle the goods subject to retention of title with diligence or if he is in default of payment, the Supplier can demand the return of the delivered goods subject to retention of title. In the event of the withdrawal or assertion of the retention of title or the seizure of the goods, this does not represent a withdrawal from contract unless the Supplier so expressly declares. After the warning of realisation with a period of notice of two weeks, the Supplier is entitled to sell the goods by private contract or otherwise auction them. The proceeds of the sale shall be credited against the purchase price.
In the event of seizures, confiscations or other dispositions or interventions by third parties, the Purchaser must notify the Supplier immediately in writing so that legal action can be taken in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse the Supplier for the court and out-of-court costs of an action pursuant to § 771 ZPO, the Purchaser shall be liable for the loss incurred by the Supplier.
V. Guarantee against material deficiencies
1.1 If and insofar as there is a defect in the goods for which the Supplier is responsible, the Supplier is initially entitled to subsequent rectification. At his own discretion, he may make a subsequent delivery (replacement delivery) or repair (repair) of the delivered goods. (If the first attempt at repair remains unsuccessful, the Supplier may in principle make a second attempt at repair). If subsequent rectification fails, the Purchaser may demand a reduction in price or withdraw from the contract and claim damages. The Purchaser must prove the failure of the subsequent rectification.
1.2. Information provided by the Supplier on dimensions relating to the accuracy of fit is always provided with regard to the subsequent professional installation of the delivered part. Therefore, universal parts which deviate slightly from the specified and/or agreed dimensions or values, but which can be installed in a vehicle in a functional manner in accordance with the generally recognised rules of technology, comply with the contractual specifications and do not constitute a defect (cf. Number II. 1.3.2 of these GTCs).
1.2.1 The Purchaser must prove that the item is defective. Wear and tear does not constitute a defect, so that the Supplier is not subject to any obligations in the event of wear and tear.
1.2.2 Unless the purchase of consumer goods is concerned, the amount of the installation costs is limited to the amount of the respective specifications according to the DAT-Schwacke list; the hourly wage costs incurred are limited to a maximum amount of € 40.00 per working hour. However, the Purchaser is at liberty to provide evidence of a higher amount of work, which will then be remunerated accordingly; the profit is always to be deducted.
2.1 If the delivery has visible defects, the Supplier must be notified in writing without delay, but at the latest within a period of two weeks after receipt of the goods. Hidden defects must be reported to the Supplier in writing within two weeks of their discovery.
2.1.1 If the freedom from defects of the goods can only be determined by commissioning (test run, etc.) or other test measures customary in the industry, the Purchaser must carry out these to the required extent immediately after delivery and immediately notify the Supplier of any defect discovered in the process. This applies in particular to the testing of leaks in the delivered goods. If and to the extent possible, these tests should be carried out before the goods are installed in a vehicle or before they are combined with other items.
2.1.2 If the Purchaser is not in a position to inspect the goods professionally, he must call in an expert at his own expense. The Purchaser bears the burden of proof that an inspection suitable for finding a particular defect is impossible.
2.2 The Purchaser must check the intactness of the packaging immediately upon delivery and notify the Supplier immediately in writing of any defects. The defects shall be documented immediately in a suitable form, if possible by means of photographs, and shall also be notified to the carrier still present. The documentation shall be provided to the Supplier in paper form or digitised.
2.3 If the goods are delivered directly to the Purchaser’s customers at the Purchaser’s request, this shall not affect the Purchaser’s obligations to inspect and notify defects in accordance with these GTCs and § 377 of the HGB (German Commercial Code). The Purchaser shall ensure that the goods are inspected there in accordance with commercial standards and that any defects are reported to him without delay, which he shall then immediately notify the Supplier of.
2.4 If no immediate notification of a defect is made, the goods shall be deemed to be approved. In this case, the Purchaser cannot assert any warranty rights for defects arising from the defect in question against the Supplier.
Liability for damages within the scope of the warranty for material defects is assumed as follows:
3.1 The Supplier shall be liable to the Purchaser for damage which he, his legal representatives and/or his vicarious agents have caused/have caused by intent or gross negligence in accordance with the statutory provisions. In cases of simple negligence on the part of the Supplier, his legal representatives and/or his vicarious agents, the liability for damages shall be limited to the foreseeable damage typically occurring in transactions of the type in question. For damages resulting from the violation of essential contractual obligations (cardinal obligations), liability for slight negligence shall be limited to the typically occurring damage; liability for gross negligence and intent is mandatory. Otherwise, the liability for compensation is excluded.
3.2 The limitations and exclusions of liability regulated under No. V. 3.1 of these GTCs do not apply to damages arising from injury to life, body and/or health or in the event of the existence of a quality guarantee. Liability for these is mandatory. Liability under the Product Liability Act remains unaffected.
3.3 If the Supplier’s liability is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives and vicarious agents.
3.4 Liability for any consulting services, etc., in particular with regard to the processing of materials, shall only be assumed if such services have been contractually agreed and are provided by the Supplier in text form.
4.1 Warranty claims of Purchasers under the law on sales contracts, which are not part of the recourse claims of the purchase of consumer goods according to §§ 478, 479 BGB (German Civil Code), are excluded if the object of purchase is a used product.
4.2 For new goods, the warranty period is one year in cases that do not concern the recourse claims from the purchase of consumer goods according to §§ 478, 479 BGB (German Civil Code).
4.3 In cases of purchase of consumer goods, the statutory limitation provisions for entrepreneurial recourse according to §§ 478, 479 BGB (German Civil Code) shall apply, unless otherwise agreed in individual contracts.
4.4 If a contract for work and labour is concluded between the parties, the Purchaser’s warranty claims for defects shall become time-barred one year after acceptance of the work and labour.
4.5 For the limitations of liability regulated under No. V. 4.1-4.4 of these GTCs and the exclusion of liability, No. V. 3.2 of these GTCs shall apply accordingly.
4.6 It is the sole responsibility of the Purchaser to agree appropriate limitations of liability with his customers who are entrepreneurs, if he wishes to exclude being bound by longer limitation periods.
VI. Entrepreneur recourse
The following provisions on business recourse according to §§ 478, 479 BGB (German Civil Code) apply only to consumer goods purchases, i.e. to the sales supply chain at the end of which a consumer is the end buyer. The provisions on entrepreneur recourse are not applicable to contracts for work and labour with the end customer who is a consumer.
If the Purchaser resells the delivered, newly manufactured item and the end customer of the sales chain is a consumer, the Purchaser can assert his own material defect liability claims against the Supplier without setting a deadline if the item had to be taken back by the end seller as a result of its deficiency or the purchase price had to be reduced and the Purchaser’s customer asserts corresponding claims against the Purchaser.
The Purchaser can also demand compensation for expenses which he had to bear in relation to his customer if the defect claimed by the consumer was already present when the risk of the item was transferred from the Supplier to the Purchaser. Expenses specifically include transport, travel, labour and material costs. .Number V. 1.2 of these GTCs shall apply.
Within the scope of the entrepreneur recourse, the customer shall only be entitled to claim damages to the extent that No. V. 3.1 and 3.2 of these GTCs do not exclude him.
1.1 The Supplier shall be liable to the Purchaser for damage which he, his legal representatives and/or his vicarious agents have caused/have caused by intent or gross negligence in accordance with the statutory provisions. In cases of simple negligence on the part of the Supplier, his legal representatives and/or his vicarious agents, the liability for damages shall be limited to the foreseeable damage typically occurring in transactions of the type in question. For damages resulting from the violation of essential contractual obligations (cardinal obligations), liability for slight negligence shall be limited to the typically occurring damage; liability for gross negligence and intent is mandatory. Otherwise, the liability for compensation is excluded.
1.2 The limitations and exclusions of liability regulated under No. V. 1.1 of these GTCs does not apply to damages arising from injury to life, body and/or health or in the event of the existence of a quality guarantee. Liability for these is mandatory. Liability under the Product Liability Act remains unaffected.
1.3 If the Supplier’s liability is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives and vicarious agents.
Liability for any consulting services, etc., in particular with regard to the processing of materials, shall only be assumed if such services have been contractually agreed and are provided by the Supplier in text form.
VIII. Ordering via the Internet
Orders can also be placed via the Internet (using the online form on the Supplier’s website). By submitting the online form, the declaration of the Purchaser’s consent to the validity of these GTCs is associated with the sending of the online form.
2.1 The personal data provided by the Purchaser or one of his employees via the online form (title, name, address, company name, date of birth, if applicable, e-mail address, telephone number, fax number, bank details, if applicable, credit card number, if applicable, date of order) will be processed exclusively for the purpose of executing a purchase or work and labour contract concluded by the Purchaser with the Supplier.
2.2 The processing of the personal data of the Purchaser includes its collection and storage by the Supplier as well as its transmission to the third parties contractually associated with the Supplier, insofar as the collection, storage and/or transmission is necessary for the conclusion, the content and the fulfilment of a contract (in particular the delivery of the ordered products).
2.3 A transfer of the personal data of the Customer to third parties for other purposes, in particular also for the purposes of consulting, advertising and market research, is excluded, unless the Customer gives his express written consent.
The goods and products presented by the Supplier on the Internet do not constitute binding offers, but only serve to motivate the Purchaser to submit a binding offer on the basis of the following provisions. In order to be able to submit a binding offer, the Purchaser’s implementing employee or the Purchaser himself must:
– have provided his complete personal data according to the online form;
– be of full age
– act as the Purchaser’s representative with effective authorisation;
– have correctly and completely stated the Purchaser’s company name and address.
3.2 By submitting a binding offer, the Purchaser expressly assures that he fulfils these requirements. By clicking the button « Send order », the Purchaser submits a binding offer to the Supplier for the conclusion of the contract. The receipt of the order will be confirmed to the Purchaser electronically without delay. This does not constitute acceptance of the offer.
3.3 The Purchaser will immediately receive an order confirmation by e-mail; this does not yet constitute acceptance of his offer. The Supplier’s declaration of acceptance shall then be sent, if necessary, within the usual processing time by e-mail, by post or by delivery.
IX. Industrial property rights and copyrights
If a third party is held liable for the infringement of an industrial property right or copyright (hereinafter referred to as industrial property rights) by products delivered by the Supplier to the Purchaser and used in accordance with the contract, the Supplier shall be liable to the Purchaser as follows:
The Supplier shall, at his own discretion and for his own account, either obtain a right of use for the product, modify the product so that the industrial property right is not infringed or replace the product. If this is not economically feasible for the Supplier, the Supplier shall take back the product against repayment of the purchase price.
These obligations shall only exist if the Purchaser immediately notifies the Supplier in writing of the claims asserted by third parties, does not acknowledge an infringement and reserves all defensive measures and settlement negotiations to the Supplier. If the Purchaser terminates the use of the product in order to mitigate damages or for other important reasons, he shall be obliged to point out to the third party that the termination of use does not imply any acknowledgement of an infringement of industrial property rights.
Claims of the Purchaser are excluded if he is responsible for the infringement of industrial property rights.
Claims of the Purchaser shall also be excluded if and to the extent that the infringement of an industrial property right was caused by his specific specifications, by an application not foreseeable by the Supplier or by the fact that the product was modified by the Purchaser and/or used together with products not supplied by the Supplier.
Further claims against the Supplier are excluded.
X. Export control regulations
When exporting the goods, the Purchaser must observe the export and control regulations valid at the time. It is the sole responsibility of the Purchaser to assess whether a product requires an export licence and whether the export is subject to certain control regulations. Any necessary permits shall be obtained in good time by the Purchaser at his own responsibility and shall be presented to the Supplier without being requested to do so.
Otherwise, the Supplier is entitled to withdraw from the contract without compensation. In any case, the Supplier shall not be liable for damages. For each case of infringement of such provisions, the Purchaser shall indemnify the Supplier against any claims of third parties, of whatever kind. This also applies to all necessary costs incurred in connection with the exercise of the Supplier’s rights.
XI. Final provisions
The Purchaser agrees that all data relating to him will be processed and stored with the aid of the Supplier’s data processing system. VIII, 2 of this GTC applies.
Text form is required if and insofar as no other form is prescribed for the declaration concerned in these GTCs.
The laws of the Federal Republic of Germany shall apply exclusively; the validity of the UN Sales Convention is excluded (CISG).
4.1 The place of performance is the Supplier’s place of business in Aachen.
4.2 Aachen is the place of jurisdiction if the Purchaser is a merchant in the sense of HGB. This also applies to claims arising from bills of exchange or cheques. In addition, the Supplier is also entitled to call upon another competent court in or outside the Federal Republic of Germany, in particular if the Purchaser has his place of business abroad.
The invalidity and impracticability of individual provisions and agreements with the Purchaser shall not affect the validity of the other provisions. The contracting parties shall undertake to replace the invalid or unenforceable provision by a provision which comes as close as possible to the sense and economic purpose of the invalid provision. This shall also apply to any loophole in these GTCs, which shall be closed accordingly by the contracting parties.