General terms and conditions for sales and supplies in commercial transactions with companies, as of: January 2012
1. These general terms and conditions for sales and supplies (hereinafter: “GTC”) underlie all supplies and services arising from the contractual relationships between Haugg Kühlerfabrik GmbH (hereinafter: “Supplier”) and its customers (hereinafter: “Purchaser”), who are entrepreneurs as defined in Section 310 of the German Civil Code (BGB).
1.1 These GTCs apply in particular to purchase contracts, work contracts and work and materials contracts.
2. These conditions of sale apply exclusively; the supplier hereby objects to conflicting or deviating conditions of purchase of the purchaser. They will become subject matter of the contract, if and to the extent that they are consistent with these GTCs or the supplier has recognised them expressly in writing. Also, a repeated sending of general conditions of purchase of the purchaser as part of the current business relationship does not imply their acceptance by the supplier for the current and future transactions, nor for the execution of these transactions itself. The receipt of the supplies and services by the purchaser is deemed to be the acceptance of these GTCs for the duration of the entire business relationship.
3. All subsidiary agreements, changes and additions to the contract between the supplier and the purchaser require a written confirmation of the supplier for these to become valid, if and to the extent that these GTCs do stipulate certain declarations to be made in writing. The same applies to any verbal agreements or confirmations, as well as assurance of product characteristics, which are made by employees of the supplier.
4. The supplier and the purchaser are hereinafter collectively referred to as the “Contracting Parties”.
II. Conclusion of the contract and delivery
1.1 The offers of the supplier in terms of price, delivery date, and other contents are non-binding. The sending of catalogues, price lists and brochures, as well as the presentation on the internet do not obligate the supplier to conclude the contract.’
1.2 Information on dimensions and weights in the catalogues and brochures is always to be considered as non-binding preliminary information. Decisive for this are only the values specified in the order confirmation.
1.3 Right to make design and shape changes, deviations in colour shade and changes in the scope of delivery on the part of the manufacturer of the goods remain reserved until delivery, insofar as these changes and deviations, taking into account the interests of the supplier, are reasonable for the purchaser.
1.3.1 If the supplier or the manufacturer uses symbols or numbers to designate the order or the ordered item, no rights with regard to ascertainment of the object of purchase or the scope of delivery can be derived from this alone.
1.3.2 Supplier’s information on dimensions relating to the accuracy of fit is generally provided considering the professional installation of the supplied part later, i.e. installation by a specialist workshop or any other expert. Therefore, the universal parts that are supplied deviate slightly from the dimensions or values agreed upon, but are in compliance with the generally accepted rules of engineering and can be fitted fully-functional into a vehicle. The universal parts supplied are therefore in accordance with the contractual specifications, if and to the extent that the purchaser has not expressly indicated in writing that compliance with specific dimensions is a mandatory subject matter of the contract. These deviations therefore do not constitute a defect in the supplied goods.
1.4 The supplier reserves the ownership rights and copyrights of the samples, cost estimates, drawings, etc. These must not be made accessible to third parties without the prior consent of the supplier.
1.5 Partial deliveries are permitted to a reasonable extent. If the purchaser is not interested in partial delivery, he can withdraw from the contract by specifying (in writing) a grace period of a minimum of 14 working days.
2.1 The contract becomes effective on placing a purchase order (offer) and a written order confirmation issued by the supplier (acceptance) thereupon.
2.2 The supplier can accept orders and commissions within 14 days.
2.3 If no written order confirmation has been made, the contract becomes effective through delivery of the ordered goods. Silence on the part of the supplier with respect to the order does not imply acceptance.
3.1 The delivery is made always “ex works”.
3.1.1 The transfer of risk to the purchaser occurs on handover of the goods to the freight forwarder or collector by the supplier or his agents, or on loading of the goods onto a transport vehicle of the supplier, but at the latest when the goods leave the warehouse of the supplier or his pre-supplier, if the supplier chooses to have them delivered by a pre-supplier directly to the purchaser.
3.1.2 If the shipment is delayed as a result of circumstances, for which the supplier is not responsible, the risk is transferred to the purchaser from the day on which the goods are ready for dispatch. At the express request (in writing) and at the expense of the purchaser, the supplier will insure the goods against damages during the period of delay.
3.2 The purchaser bears the transport costs. The shipping method is selected at the discretion of the supplier, if no other special shipping method has been expressly agreed upon in writing.
3.3 The supplier will not take out a transportation insurance, except if this is explicitly required by the purchaser and is accordingly agreed upon in writing by the contracting parties. The purchaser bears the cost of the transit insurance.
4.1 The supplier’s delivery obligations to the purchaser are subject to the supplier itself receiving proper delivery.
4.1.1 An appropriate declaration to this effect by the supplier is regarded as sufficient proof that the supplier is prevented from supplying due to circumstances beyond his control.
4.1.2 If an item is not available, the supplier reserves the right to withdraw from the contract. In this case, the supplier will immediately inform the purchaser about the non-availability and will reimburse considerations which the purchaser has made.
4.2 Delivery times, which are mentioned in the order confirmation, are not absolutely binding delivery dates, but only indicate the expected delivery date. Therefore, exceeding the expected delivery date does not constitute a default in delivery. For this, firstly, a reminder with an appropriate deadline is required from the purchaser.
4.2.1 A fixed delivery date or a binding delivery period required by the purchaser must be expressly indicated as such in writing at the time of placing the order by the purchaser. Otherwise, a fixed delivery date will not be deemed to have been agreed on, when the supplier accepts the order.
4.2.2 If, besides the fixed delivery date, the purchaser’s interest in the performance also depends decisively on the timeliness of the performance, and the purchaser is no longer interested in the performance if the delivery date is exceeded, the purchaser shall inform the supplier of this expressly in writing at the time of placing the order. Otherwise, a fixed-date transaction shall not be deemed to have been agreed when we accept the order.
5.1 Compliance with the delivery obligations by the supplier presumes that the purchaser has fulfilled all the obligations incumbent on the purchaser in this regard. If the order involves a work to be produced according to the wishes of the purchaser, the purchaser has the obligation in particular, to concretise and cooperate on technical issues during the production period. If the purchaser fulfils his obligations late or not at all, accordingly the delivery time agreed as binding also gets extended.
5.2 If non-observance of the delivery period is due to force majeure, labour disputes or other events, which fall outside the sphere of influence of the supplier, the delivery time will be extended accordingly. The supplier will notify the purchaser of the beginning and the end of such circumstances, as soon as possible. If such disruptions lead to postponement of performance by more than four months, the purchaser can withdraw from the contract. Other withdrawal rights remain unaffected.
III. Prices and Payment
The prices of goods in the supplier’s catalogues, price lists, advertisement, etc., and the prices in the order confirmation are in Euro, are ex warehouse, and exclude packaging, insurance and transport. Transport, insurance and handling charges are shown separately in the invoice. The term “purchase price” in the following also includes service fees.
The statutory value added tax is not included in the prices of the supplier. It will be shown separately in the invoice, at the applicable rate on the day of delivery.
3.1 The purchase price is due for payment at the time of delivery (purchase contract) or acceptance (work contract). The acceptance shall be valid on signing of an acceptance report, at the latest during commissioning or use (processing/assembly, etc.) of the supplied goods.
3.2 The supplier issues an invoice to the purchaser, in accordance with the statutory requirements, based on the purchase price or the service fees and any other charges (transport, packaging, insurances, etc.).
3.2 The invoice amount must be paid within 30 calendar days of delivery and invoice date (date of payment) by the purchaser. For payment within ten calendar days after delivery, the supplier grants the purchaser a 2% discount. Payment should be made, in principle, by bank transfer to the supplier’s account specified in the invoice or in cash.
3.3 On exceeding the date of payment, the purchaser shall be deemed to be in default, falls in default, without a separate reminder being sent. During the period of default, interest will be due at the rate of 8% per annum above the base rate.
3.4 If, as an exception, cheques or bills of exchange are accepted, the payment is considered as being made only after they are encashed and the sums in question are received.
4.1 Payments of the purchaser are first used to cover the costs, then the interest with the surplus is used to balance the oldest liabilities arising from the business relationship.
4.2 In case of suspension of payment or application for the initiation of insolvency proceedings against the assets of the purchaser, all claims of the supplier arising from the business relationship will be immediately due for payment, without the need for a separate repayment. In this case, the supplier is also entitled to execute outstanding deliveries only against advance payment or against adequate collateral, and if these do not take place, to withdraw from the contract after the expiry of a reasonable grace period.
4.3 Against purchase price or service fees claims of the supplier, the purchaser can offset only claims which are undisputed or are legally established counterclaims. The rights of retention are only possible if they are based on claims arising from the purchase contract or work contract in question.
IV. Reservation of title
1.1 The supplier reserves the title to all goods delivered by him until settlement of all claims from the business relationship with the purchaser.
1.2 In case of current accounts, the reserved title is deemed to be the security for the balance claim of the supplier.
1.3 If the value of all security interests, which the supplier is entitled to, exceeds the amount of all secured claims by more than 20%, on demand by the purchaser, the supplier will release a corresponding part of the security interests. The selection of the securities to be released is up to the supplier.
The processing of the delivered goods by the purchaser is always done for the owner of the new product. If the object of supply is processed, transformed or combined with other objects not belonging to the supplier, the supplier acquires co-ownership of the new object, in the ratio of the invoice value of the object of supply to the purchase price of the other goods, at the time of processing or combining. The new object resulting from the processing or combining is deemed to be goods subject to retention of title. The purchaser keeps the new object safe for the supplier with the due diligence of a prudent businessman.
The purchaser has revocable right to resell the object of supply in the normal course of business. However, to be on the safe side, the purchaser assigns to the supplier all future claims from the resale against his buyers with all ancillary rights, including any current account balance claims – up to the amount of the invoice value of the processed goods subject to retention of title, without the need for a further declaration later. It is irrelevant in this regard whether the resold goods have been processed or not. If the goods subject to retention of title are resold along with other goods, without a separate price being agreed for the goods subject to retention of title, the purchaser assigns to the supplier, with precedence over the remaining receivables, that part of the total asking price, which corresponds to the value of the goods subject to retention of title invoiced by the supplier. When a legitimate interest is substantiated, the purchaser shall furnish the supplier with the information required to assert his rights against his buyer and hand over the necessary documents.
4.1 The purchaser is not entitled to mix inseparably the goods under retention of title with his own stock or the stock of third parties, with the result that the sole ownership of the goods subject to retention of title, which is in favour of the supplier, comes to an end.
4.2 Until the ownership is transferred completely to the supplier, the purchaser marks all the delivered goods that are stored by him, in an appropriate manner as the property of the supplier, to enable segregation in the event of insolvency.
4.3 The purchaser handles the goods which are reserved under retention of title with the diligence of a prudent businessman. In particular, the purchaser is obliged to insure them at his own expense against damages due to fire, water and theft, at a sufficient replacement value. If maintenance and inspection work is required, the purchaser must carry these out at his own expense.
While the retention of title is in effect, the purchaser is prohibited from pledging or using the goods as security.
6.1 The purchaser is authorised to collect the assigned claims arising from the resale of the goods from his buyers.
6.2 In case of an important reason, especially for late payment, suspension of payments, initiation of insolvency proceedings (bankruptcy, composition, general enforcement) or if there are comparable well-founded indications of insolvency of the purchaser, supplier is entitled to revoke the collection rights of the purchaser. In addition, after prior warning of the disclosure of the assignment of security or the utilisation of the assigned claims, and complying with a reasonable deadline, the supplier can disclose the security assignment and realise the assigned claims.
6.3 If the purchaser does not fulfil his payment obligations, on the supplier’s demand, the purchaser is obliged to make the assignment known to any third party buyers, and to provide the supplier all information necessary for the supplier to assert his rights and to hand over documents to the supplier. The supplier shall release the collateral held by him to the extent that their value exceeds that of the claims to be secured by more than 20%.
If the purchaser breaches his duty of careful handling of the goods reserved under retention of title, or if he defaults on payment, the supplier can demand the surrender of goods delivered under retention of title. The withdrawal or assertion of retention of title or the attachment of the object of supply does not constitute withdrawal from the contract, unless the supplier expressly so declares. After warning of enforcement with a deadline of two weeks, the supplier is entitled to sell the goods privately or otherwise auction them. The proceeds from realisation will be credited against the purchase price.
In case of attachment, seizure or other orders or interventions by third parties, the purchaser shall promptly notify this to the supplier in writing, so that a legal action can be taken under Section 771 of the German Civil Procedure Code. If the third party is not able to reimburse the supplier for the judicial and extra-judicial costs of legal action pursuant to Section 771 of the German Civil Procedure Code, the purchaser is liable for the loss incurred by the supplier.
V. Material defect warranty
1.1 If and to the extent that there is a defect in the goods for which the supplier is responsible the supplier is first entitled to render supplementary performance. At its own discretion, the supplier may carry out a subsequent delivery (replacement) or rework (repair) for the goods delivered. (If the first repair attempt is unsuccessful, the supplier may in principle, make a second attempt to repair). If the supplementary performance fails, the purchaser can demand reduction in price or withdraw from the contract and claim damages. The purchaser must prove the failure of the supplementary performance.
1.2 Supplier’s information on dimensions relating to the accuracy of fit is generally provided considering the professional installation of the supplied part later. Therefore, the universal parts deviate slightly from the dimensions or values specified and/or agreed upon, but are in compliance with the generally accepted rules of engineering and can be fitted fully-functional into a vehicle. The universal parts are therefore in accordance with the contractual specifications, and do not constitute a defect (cf. Section II. 1.3.2 of this GTC).
1.2.1 The purchaser must prove that the article is defective. Wear is not a defect, hence the supplier has no obligations at all for the occurrence of wear.
1.2.2 If it does not concern a purchase of consumer goods, the amount of installation costs is limited to the corresponding amount in the DAT/Schwacke list. The accruing wage hours costs are limited to a maximum of € 40.00 per working hour. The purchaser is however free to prove that a greater amount of work is required, which will then be remunerated accordingly; while doing so, the profit must always be excluded from the calculation.
2.1 If the delivery has visible defects, the supplier must be informed about it promptly in writing, however, no later than a period of two weeks after the receipt of goods. Hidden defects must be reported to the supplier in writing, within two weeks of their discovery.
2.1.1 If the defect-free condition of goods can be determined only by commissioning (test run, etc.) or other industry-standard testing measures, the purchaser must perform them immediately after the delivery, to the extent necessary, and report any defect discovered immediately. It is particularly applicable for checking the delivered goods for leaks. These tests shall take place, if and to the extent possible, prior to the installation of the product in a vehicle or prior to connection with other items.
2.1.2 If the purchaser is not technically competent to test the goods, he must involve an expert at his own expense. The purchaser bears the burden of proving that an inspection, which is suitable for finding a specific defect, is impossible.
2.2 The intactness of the packaging must be checked by the purchaser upon delivery and any defects should be promptly notified in writing to the supplier. The defects must be immediately documented in an appropriate form, if possible with photographs, and in addition also shown to the freight carrier who is still present. The documentation, whether in paper form or digitised, is up to the supplier.
2.3 If, at the request of the purchaser, the goods are delivered directly to the recipient of the purchaser, this does not affect the purchaser’s obligations of inspection and obligations to give notices of defects in accordance with these GTCs and Section 377 of the German Civil Code. The purchaser ensures that the goods are examined according to objective standards and any defects are immediately reported to him, and he then makes a complaint to the supplier.
2.4 In the case of failure to promptly notify a defect, the goods shall be deemed accepted. In this case, the purchaser cannot raise any claims against the supplier under the conditions of warranty for correction of defects for the related defect.
The liability for compensation under the warranty for defects is applied as follows:
3.1 The supplier is liable to the purchaser for damages caused by the supplier, his legal representative and/or his agents, willfully or by gross negligence, in accordance with the statutory provisions. In cases of ordinary negligence of the supplier, the supplier’s legal representatives and/or agents, the liability for damages is limited to foreseeable, typically occurring damages in transactions of this nature. For damages resulting from violation of essential contractual obligations (cardinal duties), liability for ordinary negligence is limited to the typically occurring damages; for gross negligence and intent the liability is mandatory. Apart from that, the liability for damages is excluded.
3.2 The limitations of liability and exclusion of liability regulated under Clause V. 3.1 of these GTCs do not apply to damages arising from injury to life, body and/or health or to the existence of a guarantee of quality. For this, liability is mandatory. Liability arising from the product liability law also remains unaffected.
3.3 If the supplier’s liability is excluded or limited, this shall also apply to the personal liability of the supplier’s employees,workers, staff members, legal representatives and agents.
3.4 Liability for any consulting service, etc., especially with regard to the processing of materials, will be assumed, only if it has been contractually agreed and is done in writing by the supplier.
4.1 The warranty claims of purchasers under the purchase contract law, which do not relate to the claims under right of recourse for the purchase of consumer goods according to Sections 478, 479 of the German Civil Code, are excluded, if the object of purchase involves used goods.
4.2 For new goods, the warranty period amounts to one year in the cases which do not relate to claims of the customer under a right of recourse according to Sections 478, 479 of the German Civil Code.
4.3 In the cases of consumer goods, the statutory limitation provisions for the entrepreneur’s recourse shall apply according to Sections 478, 479 of the German Civil Code,
insofar not otherwise agreed in individual contracts.
4.4 If a work contract is concluded between the parties, the defect warranty claims of the purchaser shall lapse one year after acceptance of the work.
4.5 For the elimination of liability and exclusion of liability regulated under subsection V. 4.1-4.4 of these GTCs accordingly, subsection V. 3.2 of these GTCs shall apply accordingly.
4.6 It is incumbent on the purchaser alone to make agreements with his customers, who are entrepreneurs, also on appropriate limitations of liabilities, if he wants to exclude from being bound to them by longer statutory periods of limitation.
VI. Entrepreneur’s recourse
The following provisions concerning the entrepreneur recourse under Sections 478, 479 German Civil Code apply only to consumer sales, i.e. to the sale supply chain, at the end of which there is a consumer as the end client. The provisions on the entrepreneur recourse shall not apply to service contracts with the end customer who is also a consumer.
If the purchaser resells the delivered, newly manufactured article and the end customer in the sales chain is a consumer, the purchaser can raise his own defect liability claims against the supplier, without notice, if the article had to be taken back from the final seller due to a defect or the the purchase price had to be reduced, and the purchaser’s customer makes such claims against the purchaser.
The purchaser can also demand compensation for expenses that he had to bear in relation to his customers, if the defect claimed by the consumer already existed in the item during the transfer of risk from the supplier to the purchaser. Expenses are in particular transport, infrastructure, labour and material costs. Subsection V. 1.2 of this GTC applies.
Under the entrepreneur’s right of recourse, the purchaser has the right to claim for damages only as far as Subsection V. 3.1 and 3.2 of these GTCs do not exclude him.
1.1 The supplier is liable to the purchaser for damages caused by the supplier, his legal representative and/or his agents, willfully or by gross negligence, in accordance with the statutory provisions. In cases of ordinary negligence of the supplier, the supplier’s legal representatives and/or agents, the liability for damages is limited to foreseeable, typically occurring damages in transactions of this nature. For damages resulting from violation of essential contractual obligations (cardinal duties), liability for ordinary negligence is limited to the typically occurring damages; for gross negligence and intent the liability is mandatory. Apart from that, the liability for damages is excluded.
1.2 The limitations of liability and exclusion of liability regulated under Clause.VII 1.1 of these GTCs do not apply to damages arising from injury to life, body and/or health or to the existence of a guarantee of quality. For this, liability is mandatory. Liability arising from the product liability law also remains unaffected.
1.3 If the supplier’s liability is excluded or limited, this shall also apply to the personal liability of the supplier’s employees,workers, staff members, legal representatives and agents.
Liability for any consulting service, etc., especially with regard to the processing of materials, will be assumed, only if it has been contractually agreed and is done in writing by the supplier.
VIII. Order via internet
Orders can be placed also over the internet (using the online form on the supplier’s website). With the submission of this online form, the purchaser declares his agreement on the validity of these GTCs.
2.1 The personal data (title, name, address, company name, if applicable date of birth, e-mail address, telephone number, fax number, bank details, if necessary, credit card number, if necessary, date of order) disclosed by the purchaser or any of its employees via the online form, are intended to be processed solely for the purpose of fulfilling a purchase or work contract concluded by the purchaser and the supplier.
2.2 The processing of the personal data of the purchaser includes the collection and storage by the supplier and their transmission to third party associated with this contract, insofar as the collection, storage and/or transmission is required for the conclusion, content development and fulfilment of a contract (in particular, the delivery of the ordered products).
2.3 Sharing of personal data of the purchaser to third parties for other purposes, including for purposes of consulting, advertising and market research, is prohibited, if the purchaser has not expressly declared his consent in writing.
The goods and products presented by the supplier on the Internet do not constitute any binding offers, but only serve to motivate the purchaser to submit a binding offer on the basis of the following provisions. To be able to submit a binding offer, the relevant employees of the purchaser or the purchaser himself:
– must have provided their complete personal data according to the online form;
– must be of legal age
– must act on a valid authorisation from the purchaser as his representative;
– must have provided the company name and address of the purchaser correctly and completely.
3.2 With the submission of the binding offer, the purchaser assures expressly that he fulfills the pre-conditions. By clicking the “Submit Order” button, the purchaser makes a binding offer to the supplier for the conclusion of the contract. The receipt of the order is confirmed to the purchaser immediately by electronic means. This does not imply any acceptance of the offer.
3.3 The purchaser promptly receives a confirmation of the order by email; this, however, does not constitute an acceptance of the offer. The declaration of acceptance by the supplier occurs thereafter, where applicable, within the usual processing time by e-mail, by post or by delivery.
IX. Industrial property rights and copyrights
If a third party asserts a justified claim of infringement of any industrial property right or copyright (hereinafter: “property rights”) against the supplier, as a result of a product that is delivered to the purchaser and used in accordance with the contract, the supplier shall be liable to the purchaser as follows:
The supplier will, at his discretion and at own expense, either obtain a right of use for the product, change the product such that the property right is not infringed, or exchange the product. If it is not economically feasible for the supplier, the supplier will take back the product against repayment of the purchase price.
These obligations exist only if the purchaser informs the supplier immediately in writing of any such claim asserted by the third party, does not acknowledge an infringement, and reserves for the supplier the right to all protective measures and negotiations for settlement. If the purchaser terminates the use of the product to minimise damage or due to other reasons, the purchaser is obliged to inform the third party that there is no acknowledgement of a property right infringement associated with the termination of usage.
Claims of the purchaser are excluded if the purchaser himself is responsible for the infringement of the property right.
Claims of the purchaser are further excluded, if and to the extent that the infringement of property right is caused by the purchaser’s specific requirements; or by usage, which was not foreseeable by the supplier; or because the purchaser modified and/or used the product along with products which were not supplied by the supplier.
Any further claims against the supplier are excluded.
X. Export control provisions
When exporting goods, the applicable import and export control regulations must be observed by the purchaser. It is incumbent exclusively on the purchaser to assess whether a product requires an export licence and is subject to export control provisions. The purchaser must obtain all the required approvals in time, at his own responsibility and submit it to the supplier, without being requested to.
Otherwise the supplier reserves the right to withdraw from the contract without being liable to pay compensation. In each case, the supplier is not obliged to compensate for damages. For each case of contravention of such provisions, the purchaser releases the suppliers from any third party claims. This also applies to all necessary expenses incurred in connection with the exercise of the supplier’s rights.
XI. Final provisions
The purchaser agrees that all data related to him shall be processed and stored using the data processing system of the supplier. Subsection VIII. 2 of this GTC applies.
Written form is required, if and to the extent that there is no other form prescribed in this GTC for the declaration in question.
Only the law of the Federal Republic of Germany shall apply; the terms of the UN Sales Convention shall not apply.
4.1 Place of performance is the registered office of the supplier in Aachen.
4.2 Aachen is the place of jurisdiction, if the purchaser is a merchant as defined in German Commercial Code. This also applies to claims from bills of exchange or cheques. The supplier is also entitled to approach another competent court within or outside the Federal Republic of Germany, especially in case the purchaser has his registered office abroad.
The invalidity and unenforceability of individual provisions and agreements with the purchaser shall not affect the validity of the other provisions. The contracting parties commit themselves to replace the invalid or unenforceable provision by a provision that most closely reflects the meaning and the economic purpose of the invalid provision. This applies also for legal loopholes in this GTC which needs to be closed by the contracting parties.