General Terms and Conditions of Sale and Delivery
1. Scope of Application
1. The following Terms and Conditions of Sale and Delivery shall apply to all contracts concluded between the buyer and us concerning the sale and delivery of goods. They shall also apply to all future business relationships, even if they are not expressly agreed on once again. Deviating terms and conditions of the buyer which are not expressly recognised by us shall not be binding on us, even if we do not expressly object to them. Our Terms and Conditions of Sale and Delivery shall apply even if we carry out the buyer's order unconditionally in the knowledge of contrary or deviating terms and conditions of the buyer.
1.2 The Terms and Conditions of Sale and Delivery shall only apply to entrepreneurs in the sense of Section 14 of the German Civil Code (BGB), legal persons under public law and special funds under public law; it shall not apply to consumers (Section 13 of the BGB).
1.3 Individual agreements made with the buyer in individual cases shall always take precedence over these Terms and Conditions of Sale and Delivery. A written contract or written confirmation on our part is required for the content of such agreements.
1.4 Legally relevant declarations and notifications that are to be submitted to us by the buyer after conclusion of the contract (e.g. notifications of defects, declaration of withdrawal or reduction as well as setting of deadlines) shall be in text form in accordance with Section 126 b of the BGB to be effective. This also applies to the waiver of this text form clause.
1.5 References to the validity of statutory regulations are for the purposes of clarification only. The statutory regulations shall therefore also apply without such clarification, unless they are directly modified or expressly excluded in these Terms and Conditions of Sale and Delivery.
2. Conclusion of Contract
2.1 We may accept any order from the buyer which can be qualified as an offer to conclude a purchase contract by sending an order confirmation within two weeks or by shipping the ordered products within the same period.
2.2 For the purpose of performing a credit check on the buyer, and provided that we have demonstrated a legitimate interest, we shall be entitled to retrieve any address and financial data relating to the buyer that has been stored, including such data that can be determined on the basis of mathematical and statistical methods, via the companies Bürgel Wirtschaftsinformationen GmbH & Co. KG, Postfach 500166, 22701 Hamburg, Germany; Creditreform, Stuttgarter Str. 35, 73430 Aalen, Germany; and Bisnode D&B Deutschland GmbH, Robert-Bosch-Str. 11, 64293 Darmstadt, Germany. To enable decisions concerning the establishment, execution or termination of the contractual relationship, we shall collect or use probability figures calculated using information including address data.
2.3 Our offers shall be non-binding and subject to change, unless we have expressly designated them as binding. This shall also apply if we have provided the buyer with catalogues, technical documentation - drawings, plans, calculations, references to DIN standards, other product descriptions or documents – including in electronic form.
2.4 Acceptance by us can be declared either in text form in accordance with Section 126 b of the BGB (e.g. by order confirmation) or by delivery of the goods to the buyer.
2.5 To the best of our knowledge and experience, we are willing to provide any advice requested by the buyer, that the buyer may require in addition to product descriptions and installation instructions, but without obligation to do so. All details and information as well as applications of any kind shall not exempt the buyer from carrying out his/her own tests to determine the suitability of the products for the intended processes and purposes. Details and information provided by us are non-binding and shall not justify a separate contractual relationship or ancillary obligations from the concluded sale and delivery contract, unless otherwise expressly agreed in writing (text form in accordance with Section 126 b of the BGB is sufficient).
3. Terms and Conditions of Payment - Prices
3.1 Unless otherwise agreed in individual cases, our current prices at the time the contract is concluded apply on an ex-works basis (EXW in accordance with Incoterms 2020) ex-warehouse. Our prices do not include the statutory value added tax. We shall disclose the amount of value added tax applicable on the invoice date separately in our invoice. Unless a fixed price agreement has been made, we reserve the right to make reasonable price adjustments due to changes in wage, raw material, material and distribution costs for deliveries made three months or later after conclusion of the contract.
3.2 In the case of sale by dispatch, the buyer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes or other public charges shall be borne by the buyer. Should the shipment be made using reusable pallets, these shall only be loaned to the buyer; the buyer shall undertake to properly return or replace such pallets.
3.3 The purchase price shall be due and payable without deductions within 10 days of invoicing and delivery of the goods. Cash discounts are not permitted unless otherwise agreed in writing between us and the buyer. A payment shall not be deemed to have been made until we have the amount at our disposal.
3.4 Upon expiry of the above payment period, the buyer shall be in default without the need for a separate reminder. The purchase price shall bear interest at the applicable statutory rate during the period of default. We reserve the right to assert further compensation claims caused by delay.
3.5 The buyer shall only be entitled to set-off, even if complaints or counterclaims are being made, if the counter-claims have been determined in a final and legally binding manner, have been acknowledged by us or are undisputed. The buyer shall only be entitled to exercise a right of retention if his/her counter-claim is based on the same contractual relationship. We shall be entitled to exercise a right of retention on all receivables arising from the business relationship with the buyer.
3.6 Should our claim to the purchase price be jeopardized by the buyer's inability to pay after conclusion of the contract, we are entitled to refuse performance and, with a deadline set if necessary, to withdraw from the contract (Section 321 of the BGB).
4. Delivery, Performance Time and Delivery Delays
4.1 Delivery dates or periods which have not expressly been agreed as binding are exclusively non-binding information. Unless otherwise agreed, delivery is made on an ex-works basis (EXW in accordance with Incoterms 2020) from the Hermaringen warehouse, which is also the place of performance. The delivery time quoted by us shall only commence when the technical issues have been clarified. Similarly, the buyer is obliged to fulfil all of the obligations to which he is subject, both properly and in a timely manner. We reserve the right to the defence of lack of performance of the contract.
4.2 In the event that a delivery delay for which we are responsible – and where a fault on the part of our representatives or vicarious agents is to be ascribed to us – is due to a grossly negligent or intentional breach of contract on our part or a slight breach of a fundamental contractual obligation on our part, we shall be liable in accordance with the statutory provisions, with the proviso that in such cases our compensation liability is limited to the foreseeable, typically occurring damage or loss.
4.3 A delivery delay for which we are responsible, which shall be based solely on the culpable breach of a non-fundamental contractual obligation, shall limit the buyer's compensation claim to 25% of the value.
4.4 Should we be completely or partially prevented from fulfilling our obligations due to a force majeure event, we shall be released from fulfilling our contractual obligations until cessation of the force majeure event. We shall however immediately inform the buyer thereof insofar as he/she is not also prevented from fulfilling the contract by a force majeure event. The impossibility of an adequate supply of utilities such as electricity, heating, etc., as well as strikes and lockouts, the outbreak of an epidemic or pandemic, as well as terrorist attacks, earthquakes and/or drought – unless they are of short duration or by our fault – shall be equated to a force majeure event. In the case of a force majeure event, we shall be entitled to postpone our delivery time. In this respect, the buyer shall not be entitled to withdraw from the contract or to claim damages; our liability shall be excluded. Should delivery not be possible within a reasonable period of time or if the buyer can credibly demonstrate that a later delivery is not reasonable for him/her, he/she shall have the right to withdraw from the contract. Any claims of the buyer over and above this, in particular compensation claims, are excluded.
5.1 The buyer shall undertake to carry out all actions required for acceptance of our delivery. In the event of a culpable breach of this obligation by the buyer, he/she shall be liable to us for any additional expenses. In such cases, we also reserve the right to assert further compensation claims.
5.2 Should the buyer's acceptance of the delivery be delayed by more than 14 days, we shall grant, in writing, a grace period of 14 days for the acceptance; at the same time, we shall issue a notification that acceptance will be rejected if this defined period expires without the action having been carried out. Should the buyer allow the defined grace period to elapse without the action having been carried out, we shall be entitled to withdraw from the purchase contract by means of a written declaration, or to demand compensation for non-performance. Should the buyer continue to refuse acceptance, or if he/she is clearly unable to pay the purchase price even if a grace period is granted, there shall be no requirement to grant a grace period.
5.3 In such cases, we shall be entitled to claim our loss of profits amounting to 10 % of the agreed purchase price, unless the buyer proves that we incurred a lower loss. Irrespective of this, we shall be entitled to prove and claim higher damages.
6.1 The buyer's claims due to defects only exist if the buyer has duly complied with his/her inspection and complaint obligations in accordance with Section 377 of the German Commercial Code (HGB). If the buyer makes changes to our products, fails to follow our operation, installation and maintenance specifications or safety instructions, or does not follow them sufficiently, or uses parts or consumables that have not been approved by us, our warranty obligation shall no longer apply, unless the buyer can prove that the defect concerned is not the result of one of these circumstances. Otherwise, our installation instructions and warranty conditions shall apply.
6.2 If there is a defect in the goods for which we are responsible, we shall undertake to effect subsequent performance – excluding the rights of the buyer to withdraw from the contract or to reduce the purchase price (reduction) – unless we are entitled to refuse to effect subsequent performance due to the statutory regulations.
6.3 The buyer must grant us a reasonable period of time for the subsequent performance. The subsequent performance may be effected either by removal of the defect (subsequent improvement) or by delivery of new goods. In the case of the removal of a defect, we shall bear the necessary costs provided that these do not increase because the goods of the contract are at a location other than the place of performance. We shall not accept claims for reimbursement of expenses if our defective product is combined with another item in such a way that a new functional purpose is created. At our reasonable discretion, we shall be entitled to determine the type of subsequent performance. Any subsequent performance by us shall take place without recognition of a legal obligation, unless the defect has been recognised by us. If the subsequent performance fails, the buyer may, at his/her discretion, demand a reduction in the purchase price (reduction) or declare his/her withdrawal from the contract. The subsequent improvement shall be deemed to have failed after the second unsuccessful attempt, unless further attempts to achieve an improvement are appropriate and reasonable for the buyer in view of the nature of the contractual item.
6.4 Compensation claims according to statutory provisions due to a defect may only be asserted by the buyer if the supplementary performance fails. The buyer shall not be entitled to demand compensation claims or a reduction in the purchase price in the case of insignificant defects.
6.5 The claims of the buyer due to defects in the purchased item shall lapse 5 years after delivery of the goods to the buyer if they were used for construction work in accordance with their normal method of utilisation and this has caused their defectiveness. This shall also apply to claims of the buyer for compensation or compensation instead of service, and due to all other damage to the buyer‘s rights arising from the defect; it shall not, however, apply to damage to the life, limb or health of the buyer, or to cases in which we are responsible for the defect as a result of wilful intent or gross negligence, including on the part of our vicarious agents.
6.6 Claims due to defects shall not exist in the case of natural wear and/or damage occurring after the transfer of risk as a result of faulty and/or negligent handling of unsuitable equipment and/or inadequate water quality or incorrect installation. Moreover, claims for defects shall not exist in the case of chemical and/or electrochemical influences on our products, unless we are responsible for them. Our warranty and/or liability shall particularly be void if accessories that have not been approved by us are installed with our products. The contrary shall only apply if the warranty case and/or liability is demonstrably not due to one of the aforementioned reasons for exclusion.7. Liability
7.1 Unless otherwise stated in these Terms and Conditions of Sale and Delivery, including the following provisions, or in a separate written agreement between us and the buyer, we shall be liable – for whatever legal reason – in the event of a violation according to the applicable statutory regulations.
7.2 Insofar as we intentionally or through gross negligence violate a contractual obligation or an essential contractual obligation through simple negligence, our obligation to pay compensation shall be restricted to foreseeable damage that is typical for the contract. Essential contractual obligations are such obligations whose fulfilment is essential for the proper execution of the contract and on whose observance the buyer can regularly rely. In all cases of other slightly negligent breaches of obligations – except for those in Section 4.3. – our liability shall be excluded.
7.3 The regulations of the previous paragraphs shall apply to all compensation claims (and particularly to compensation in addition to service and compensation instead of service), regardless of the legal basis, particularly when arising as a result of defects, a breach of obligations from the obligatory relationship, or tortious acts. They shall also apply to claims for compensation of wasted expenditure. However, liability for delivery delays shall be determined exclusively in accordance with Section 4. of these Terms and Conditions of Sale and Delivery. Our unlimited liability as a result of intent, gross negligence, according to the regulations of the German Product Liability Act, any warranty or injury to life, limb or health shall remain unaffected by this limitation of liability.
7.4 A change in the burden of proof that is to the disadvantage of the buyer is not connected to the previous regulations.
8. Retention of Title, Use of Our Intellectual Property
8.1 We hereby reserve the title, copyright and all other rights of use to all pictures, calculations, drawings and other documents. The buyer may only pass these on to third parties with our prior written consent.
8.2 The delivery item shall remain our property up to the point at which all our claims against the buyer arising from the business relationship have been satisfied.
8.3 The buyer shall be permitted to process or remodel the delivery item ("processing"). Processing shall be carried out for us. The retention of title shall extend to the products resulting from the processing, mixing or combination of our products at their full value, whereby we shall be considered to be the manufacturer. In case of processing, mixing or combining our goods with products of a third party, the title of which is retained, we shall acquire co-ownership in such processed, mixed or combined goods in proportion to the invoice values. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title. To the extent that we acquire ownership or co-ownership, we shall keep the goods safe for the buyer with the due care and diligence of a prudent businessman.
8.4 In the event that the delivery item or the new goods are sold, the buyer hereby assigns to us by way of security his/her claims arising from the resale against his/her customer, plus all ancillary rights, without the need for any additional special declarations. We expressly accept this assignment. The assignment shall apply inclusive of any balance receivables. However, the assignment shall only apply to the amount that corresponds to the price of the delivery item invoiced by us. The share of the receivable assigned to us must be satisfied as a matter of priority.
8.5 If the buyer combines the delivery item or the new goods with property, he/she shall – without the need for any additional special declarations – also assign his/her receivables to which he/she is entitled as remuneration for the combination, at the amount that corresponds to the price of the delivery item invoiced by us. We also expressly accept this assignment.
8.6 Until further notice, the buyer shall be entitled to collect receivables assigned to us. The buyer shall immediately forward payments made towards the receivables assigned to us, up to the amount of the secured receivable. If there is a legitimate interest, and particularly in the case of default of payments, suspension of payments, opening of insolvency proceedings, protest of a bill, or substantiated evidence of over-indebtedness or impending insolvency of the buyer, we shall be authorised to withdraw the buyer's right of collection. Additionally, following prior warning and with a reasonable deadline adhered to, we may disclose the security assignment, make use of the assigned receivables, and demand disclosure of the security assignment by the buyer to his/her customers. If a justified interest is substantiated, the buyer must provide us with the information necessary to assert his/her rights in respect of his/her customers, and surrender the necessary documents.
8.7 For the duration that the retention of title is in place, the buyer shall be prohibited from pledging or assignment as security. In the event of seizure, confiscation or other official orders or acts of intervention by third parties, the buyer must notify us immediately. The resale of the delivery item or the new goods is only permitted for resellers in the ordinary course of business, and only under the condition that the proceeds from the delivery item are paid to the buyer. The buyer must also agree with the customer that the customer shall only acquire ownership once this payment is made.
8.8 If the realisable value of all security rights to which we are entitled exceeds the amount of the secured claims by more than 10%, we shall release a corresponding part of the security rights at the buyer's request. It shall be assumed that the conditions of the previous sentence have been met if the estimated value of the securities to which we are entitled reaches or exceeds 150% of the value of the secured claims. We shall be entitled to choose between the various security rights for release.
8.9 If the buyer breaches obligations – particularly in respect of default of payment – we shall be authorized, without setting a deadline, to demand surrender of the delivery item or the new goods and/or, with a deadline set if necessary, to withdraw from the contract. The buyer shall undertake to surrender possession. A demand for the surrender of the delivery item/of the new goods shall not constitute a declaration of withdrawal on our part, unless expressly stated.
9. Data Protection, Confidentiality
9.1 The execution of contracts concluded between us and the buyer shall take place in compliance with legal provisions such as the German Federal Data Protection Act (BDSG), the German Telecommunications-Telemedia Data Protection Act (TTDSG) and the European General Data Protection Regulation (GDPR). We give our assurance that the stored data will only be stored for internal use. Otherwise, data will only be transferred to external service providers in compliance with data protection regulations. If necessary, we will conclude separate agreements in which the external service providers undertake to comply with the applicable statutory regulations. Within the scope of our legitimate interest, we exchange creditworthiness information within INDUS Holding AG, Kölner Straße 32, 51429 Bergisch Gladbach and the companies affiliated with us there, as well as with credit agencies. In this context, we refer to the latest version of the data protection statement published on our homepage at www.hauff-technik.de/datenschutz.html.
9.2 Both contracting parties undertake to treat information and data from their mutual business relationship confidentially. In the event of an infringement, we reserve the right to claim damages and take action under criminal law.
9.3 The obligation of confidentiality towards the buyer does not apply to companies affiliated with us within the meaning of Section 15 of the German Stock Corporation Act (AktG) or in the event that the content of the contract/information is already known or generally accessible.
10. Legal Venue, Choice of Law
10.1 Our registered office shall be the place of performance and jurisdiction for deliveries and payments and for all disputes arising between us and the buyer based on the contracts concluded between us and the buyer. The same shall apply to cross-border deliveries resulting from contractual relationships. We shall also be entitled, however, to sue the buyer at the court where he/she has his/her general place of jurisdiction.
10.2 The relations between the contracting parties shall be determined exclusively in accordance with the law of the Federal Republic of Germany. The application of international conventions concerning the sale of movable goods and the UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
10.3 The German version of the contents of our General Terms and Conditions of Sale and Delivery shall apply exclusively, even if there are versions in other languages.
11.1 Should individual provisions of these General Terms and Conditions of Sale and Delivery be or become wholly or partially invalid, void or unenforceable, this shall not affect the validity of the remaining General Terms and Conditions of Sale and Delivery.
11.2 The parties agree that in place of the invalid, void or unenforceable provision, a valid and enforceable provision should be created, the effect of which comes as close as possible to the economic objective that the contracting parties were pursuing with the invalid, void or unenforceable provision.
Version: June 2023