Terms and Conditions
General Terms and Conditions for Deliveries and Services of H-Flachs GmbH
§1 Scope of Application
1. Unless otherwise expressly agreed, the following General Terms and Conditions (hereinafter referred to as GTC) shall apply to all contracts, offers, sales, deliveries and other services, to all present and future legal relations between us and our customers, including any consulting services provided in this connection that are not the subject of an independent consulting contract; parties who are not consumers within the meaning of Section 310(1) of the German Civil Code (BGB).
2. We hereby expressly object to any terms and conditions of purchase of the Buyer that deviate in part or entirely from our Terms and Conditions or from statutory provisions; hence they shall have in principle no effect. They shall not apply even if we deliver or perform the work despite our knowledge of contrary terms and conditions.
3. If a merchant has not received the GTC with the offer or delivery slip, or if they were not handed to him at another opportunity, e.g. by means of an earlier order confirmation or earlier delivery slip, they shall apply if the merchant was aware of them or should have been aware of them through an earlier business relation. In a current business relationship between merchants, the GTC are also an integral part of the contract, even if the Seller has not expressly referred to their incorporation by reference in an individual case.
§2 Offers and Conclusion of Contract
1. All offers, also in price lists and sales documentation of the Seller as well as in the internet are subject to change unless expressly described as binding, in other words, they are mere invitations to submit an offer.
2. Orders are deemed to have been accepted, if they are either confirmed in writing or performed without undue delay after receipt of the order or on the scheduled date. In this case, the invoice serves as order confirmation.
3. Agreements with agents shall be invalid unless confirmed in writing.
4. If the confirmation letters with deviating content intersect, the letter of the Seller shall prevail.
5. If the Seller becomes aware, after the conclusion of the contract, of facts, in particular a delayed payment for prior deliveries, which suggest according to due commercial judgment that the purchase award that the claim to the purchase prices to a lack of financial capacity of the Buyer is at risk, the Seller is entitled, subject to a due notice period, to require the Buyer to pay up front or a corresponding security and to rescind the contract, in which case an invoice for part deliveries already performed shall become immediately due for payment.
§3 Data Storage, Request For Information
1. The Buyer is herewith informed that the Seller processes the personal data of the Buyer obtained in the course of the business relationship in accordance with the provisions of the German Federal Data Protection Act (BDSG).
§4 Delivery, Transfer of Risk and Default
1. The performance owed is deemed effected if the subject of the delivery corresponds essentially – even in quantity and mass tolerances of up to 10 % – to the contract.
2. Upon provision of the goods at the agreed place of delivery by the Seller, the risk passes to the Buyer.
3. Our confirmed delivery dates are non-binding departure dates. In the event of divisible deliveries, we are entitled to make part deliveries, and in the event of timely advance notification, and to early delivery.
4. The delivery period is extended appropriately – even in the case of default – in the event of force majeure and all unforeseen obstacles that occur after conclusion of the contract (labour disputes, sovereign administrative measures, traffic disruptions, etc.) that do not fall in the sphere of responsibility of the Seller, provided that such obstacles are shown to have a substantial impact on the delivery of the sold object. This applies even if these circumstances occur at the Seller’s suppliers and their suppliers. The Seller will inform the Buyer as soon as possible about the start and end of such obstacles. The Buyer may demand from the Seller a statement to the effect if the Seller will rescind the contract or deliver within a reasonable period. If the Seller does not make a corresponding statement without undue delay, the Buyer may rescind the contract. However, any claim for damages shall remain excluded. The above provisions apply mutatis mutandis to the Buyer if the above obstacles occur within the sphere of the Buyer.
5. In regard to timely delivery, the Seller shall only be liable for his own faulty acts or omissions and those of persons employed by the Seller to perform an obligation. The Seller shall not be liable for the faulty acts or omissions of his upstream suppliers, as the latter are not persons employed by the Seller to perform an obligation. However, the Seller is obliged, upon request, to assign any claims against his upstream suppliers to the Buyer.
6. The Buyer may only set a grace period for delivery, if the agreed delivery date is exceeded by more than two weeks. The Buyer must set a reasonable period of not less than three weeks. After unsuccessful expiry of the grace period, the Buyer may rescind the contract. Any claim for damages against the Seller for breach of duty is excluded, unless the Seller acted at least with gross negligence or in the event of a personal injury.
7. Reusable packaging (e.g. EURO pallets) is only provided to the Buyer by way of a loan. Return of the packaging unit must be notified by the Buyer to the Seller in writing, and the packaging must be made available. In the absence of a notification, the Buyer is entitled to charge retroactively a rental fee of the invoice the value of the packaging; the amount will be come due for payment upon receipt of the invoice.
§5 Pricing
1. All prices are ex Saaldorf-Surheim, excluding packing materials.
2. The prices, all exclusive of any applicable VAT, are based on the costs, in particular wage costs, materials, supplier costs and customs charges, etc., applicable at the time of order confirmation.
3. If a change in the calculation base of the Seller occurs before delivery and within four months after conclusion of the contract, the Seller is entitled to change the price correspondingly. The Seller shall inform the Buyer as soon as possible thereof.
§6 Payments
1. Unless agreed otherwise by the Parties, the purchase price is due for payment without deduction immediately upon receipt of the goods; any other payment terms must be agreed separately and in writing. Payment by bill of exchange is only permissible after special agreement. Bills of exchange and cheques are only accepted on account of payment, never in lieu of payment. In the event of a bill protest or cheque protest, the Seller may require immediate payment in cash against reciprocal and simultaneous return of the bill of exchange or cheque.
2. In the event of payment default, the statutory provisions apply. Any early payment discounts agreed shall not be granted if the Buyer is in default of payment for earlier deliveries.
3. If the Buyer is in payment default following a warning notice (Section 286(1) of the German Civil Code [BGB]), or if a bill of exchange is not honored upon maturity, the Seller is entitled to recover the good, and if necessary to enter the premises of the Seller and take back the goods. In addition, the Seller may prohibit the removal of the delivered goods.
4. Payment may not be refused or retained, if the Seller was aware of the defect or other ground of objection at the time of conclusion of the contract. The same applies if he failed to take note of the defect through gross negligence, unless the Seller has fraudulently concealed the defect or other ground of objection or has assumed a warranty for the quality of the item. In all other respects, payment may only be retained for defects or other grounds of objection to a reasonable extent.
5. The Buyer is only entitled to offset only insofar as the Buyer’s claim is acknowledged and confirmed by a final and binding judgment.
§7 Notice of Defect, Warranty and Liability
1. The Seller shall only be liable for defects within the meaning of Section 434 BGB as follows: The Buyer shall inspect the goods received without undue delay for quantity and quality. Obvious defects must be notified in writing in the CMR waybill. In a mutual commercial transaction between merchants, the provisions of Section 377 of the German Commercial Code (HGB) remain unaffected.
2. The Buyer may not dispose of goods in which he has detected a defect, in other words, the goods may not be separated, resold, processed or installed, until an agreement on how to proceed with the complaint has been reached or until a procedure to secure the evidence has been carried out by an expert appointed by the Chamber of Crafts or the Chamber of Industry and Commerce at the place of the registered office of the Buyer.
3. In the event of a justified complaint, the Seller is entitled to determine, having regard to the type of defect and the legitimate interests of the Buyer, the type of cure (substitute delivery or repair). The Buyer shall grant the Seller a reasonable period and opportunity to remedy the defect. Warranty claims shall lapse if no such period or opportunity is granted. If the cure fails repeatedly, the Seller is also entitled to rescind the contract or claim a reduction of the purchase price. Any further claims of the Buyer against the Seller or his agents, regardless of their legal cause, are excluded, unless the Seller acted at least with gross negligence or in the event of a personal injury.
4. In the event that a consumer suffers a warranty case, the Buyer shall inform the Seller without undue delay.
5. Warranty claims shall expire 24 months after delivery.
6. Claims for damages shall be governed by the Section General limitation of liability.
7. We do not provide any warranty for improper use and treatment of the contract goods. Furthermore, warranty claims lapse if the contract goods are damaged or destroyed through improper use or storage after the transfer of risk. Warranty claims of any kind against the Seller shall lapse if the contract goods are handled or used contrary to the instructions or guidelines incorporated by us in the agreement.
8. Customary deviations in dimension or material and/or deviations needed for production purposes do not entitle the Buyer to object to the contract goods. EN standards, DIN standards and company standards, if available, shall apply to tolerances.
9. Excess deliveries or short deliveries of up to 10 % in volume or number of items are permitted. They do not entitle the Buyer to object.
10. No warranty is assumed for special designs according to specifications, calculations or construction documents of the Buyer to the extent that defects are based on them.
§8 General Limitation of Liability
1. Claims for damages and reimbursement of expenses of the Buyer (hereinafter compensation claims), regardless of their legal cause, in particular for a breach of duties arising from a contract or from delict, are excluded. This shall not apply in the event that a guarantee or procurement risk has been assumed. Furthermore, the limitation shall not apply in case of a mandatory liability, e.g. under the Product Liability Act, in the event of gross negligence, for an injury to life, body or health as well as in the event of a breach of essential contractual obligations. The claim for damages for the breach of essential contractual obligations is limited to the contract-typical, foreseeable damage in the absence of gross negligence or liability for an injury to life, body or health. This does not result in a change in the burden of proof to the detriment of the Buyer.
2. The same provision applies mutatis mutandis to the Buyer.
§9 Retention of Title
1. The Seller retains title to the goods until full payment of the purchase price. In the event of goods which the Buyer obtains from the Seller in the course of an ongoing business relation, the Seller retains title to the goods until full settlement of all claims against the Buyer arising out of the business relation, including the claims arising in future, and also from claims arising out of contracts concluded simultaneously or later. The same applies if individual or all claims of the Seller form part of a current account and if the balance from the account has been drawn and recognised. If a liability of the Seller by virtue of a bill of exchange is established in connection with the payment of the purchase price by the Buyer, the retention of title shall not expire before the Buyer as the drawee has discharged the bill of exchange. Upon default of payment of the Buyer, the Seller is entitled to recover the goods after a warning notice, and the Seller is obliged to return the goods.
2. If the goods subject to retention of title is processed by the Buyer into new movable goods, the processing shall be made on behalf of the Seller, without the latter incurring any obligation as a result. The new goods shall become the property of the Seller. In the event of processing in conjunction with goods not belonging to the Seller, the Seller shall acquire ownership of the new goods at the ratio of the value of the goods subject to retention of title to the other goods at the time of the processing. If goods subject to retention of title are combined, intermixed or blended pursuant to Sections 947 and 048 BGB with goods not belonging to the Seller, the Seller shall acquire co-ownership in accordance with the statutory provisions. If the Buyer acquires sole ownership by combination, intermixture or blending, he transfers already herewith co-ownership to the Seller at the ratio of the value of the goods subject to retention of title to the other goods at the time of the combination, intermixture or blending.
In these cases, the Buyer shall hold the goods belonging to the Seller in sole or co-ownership, which are also deemed to be goods subject to retention of title pursuant to the provisions above, in gratuitous safekeeping.
3. If goods subject to retention of title are sold as such or in conjunction with goods that do not belong to the Seller, the Seller assigns already herewith the claims arising out of the resale for the amount of the value of the goods subject to retention of title with all ancillary rights and priority over all other rights. The Buyer herewith accepts the assignment. The value of the goods subject to retention of title is the amount invoiced by the Seller, which, however, remains outside of consideration to the extent of opposing rights of third parties. If the resold goods subject to retention of title are co-owned by the Seller, the assignment of the claim extends to the amount that corresponds to the value of the Seller’s co-ownership share.
4. If goods subject to retention of title are installed by the Buyer as an essential part of real estate, a ship, ship construction or aircraft of the Buyer or of a third party, the Buyer assigns already herewith the resulting assignable claims at the amount of the value of the goods subject to retention of title with all ancillary rights, any right to a cautionary mortgage, with priority over all other rights. The Seller accepts the assignment. Paragraph 2, sentences 2 and 3 apply mutatis mutandis.
5. The Buyer is only entitled and authorised to resell, use or install the goods subject to retention of title as part of the ordinary and proper course of business and only subject to the provision that the claim within the meaning of paragraphs 3 and 4 is transferred in fact to the Seller. The Buyer is not entitled to dispose in any other way of the goods subject to retention of title; he is, in particular, not entitled to pledge the goods or to transfer the goods by way of security.
6. Subject to revocation, the Seller authorises the Buyer to collect the claims assigned pursuant to paragraphs 3 to 4. The Seller will not exercise his own right to collect the claims as long as the Buyer meets his payment obligations also vis-à-vis third parties. At the request of the Seller, the Buyer shall state the debtors of the assigned claims and to inform the latter of the assignment. The Seller is authorised to notify the debtors of the assignment himself.
7. In the event of forced execution measures by third parties in respect of the goods subject to reservation of title, the Buyer shall inform the Seller without undue delay and transmit the documents required for an objection.
8. Upon suspension of payment and/or an application to commence insolvency proceedings, the claim to resell, use or install the goods subject to retention of title or the authorisation to collect the assigned claims lapse. In the event of bill protest or cheque protest the authorisation to collect the claims lapse as well. This does not apply to the rights of the liquidator.
9. If the value of the provided securities exceed the claims (reduced, if appropriate, by the down payments and part payments) by more than 20 %, the Seller is obliged to return or release, at his choice, the corresponding amount. Upon settlement of all claims of the Seller arising from the business relationship, ownership of the goods subject to retention of title pass to the Buyer.
§10 Place of Jurisdiction and Applicable Law
1. Provided that the Buyer is a merchant, a legal person under public law or a special fund under public law, the place of performance and place of jurisdiction for deliveries and payments (including claims relating to bills of exchange and cheques), as well as for all disputes arising between the parties, shall be Freilassing. However, the Seller is entitled to file a claim against the Buyer at the registered office of the Buyer.
2. The relations between the Contracting Parties shall be governed exclusively by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of goods.
§11 Severability Clause
1. The invalidity of one or more of these terms and conditions in whole or in part shall not affect the validity of the other terms and conditions. To the extent that an invalid clause contains an effective, appropriate part, such part shall remain in effect.
2. In this event, the Parties undertake herewith to adopt a substitute provision that comes as close as possible to the economic effect of the invalid clause.