 General Terms and Conditions of Trade of HUGA Hubert Gaisendrees GmbH & Co. KG
§ 1 Basic principles/Area of application (1) Our terms and conditions of trade (AGB) form the basis of all present and future deliveries, services and quotations – unless separately agreed in individual cases. Other terms of trade of a customer shall only apply if these are specifically agreed by us in writing; they will also not apply – even if we are aware of them – if we have not specifically denied them.
(2) Any alternative or supplementary agreements must be agreed to in writing before they become effective.
§ 2 Quotation/Conclusion of contract/Fluctuations (1) Our quotations are subject to change without notice. A binding agreement is subject to the conditions governing our ability to deliver not changing in a way which we could have foreseen if we had exercised the necessary care. We reserve the right to make technical modifications and non-essential adjustments of form, colour and/or equipment within the framework of acceptability.
(2) Details contained in the documents enclosed with the quotation (enclosures) – such as illustrations, sketches, plans, specifications regarding weight, dimensions and performance, etc. – are non-binding unless specifically designated in writing as binding elements of the quotation or contract. The enclosures remain our property. They may not be made available to third parties. They are to be returned to us promptly upon request or upon the non-materialization of the contract. Public statements, sales talk or advertising by the manufacturer do not represent any contractual quality specifications of the goods towards commercial customers.
(3) Weight, dimensions, performance or other technical specifications contained in the quotations or enclosures are subject to change as long as they remain in accordance with DIN (German Industry Standard) regulations and normal business fluctuations. Other fluctuations in shade, grain, finish, etc. do not entitle the customer to complaint. There is no entitlement to delivery of the article displayed, unless this has been specifically agreed in writing.
(4) The order of a product by the customer is his commitment to purchase the product. We are entitled to accept the contract conditions contained in the order within two weeks after receipt; our acceptance can either be in writing or by delivery of the product to the customer.
(5) The contract is concluded on the condition that we ourselves punctually receive the correct delivery of goods from our suppliers. This only applies if we are not responsible for non-delivery, particularly when an identical hedging transaction has been concluded with our supplier. The customer shall in this event be informed without delay of the non-availability of the service. In this event any consideration which has already been made will be reimbursed without delay.
§ 3 Remuneration/Payments/Payment default (1) Prices quoted are nett unpacked and ex factory plus the legal sales tax applicable on the day of delivery.
(2) Prices quoted are valid for a period of four months from conclusion of the contract. With longer delivery times the prices valid on the day of delivery will be charged, if in the meantime there has been an increase in labour costs and material costs, suppliers’ or manufacturers’ prices on which they are based.
(3) We reserve the right to correct any pricing errors, mistakes in calculation, typing or other errors. Basically the prices valid on the day of delivery shall be considered as agreed and will be charged to companies and other persons as per § 310 (I) of the BGB [Bürgerliches Gesetzbuch – German Civil Code].
(4) Any discounts or other concessions agreed shall become inapplicable in the event of judicial and extrajudicial conciliation proceedings, insolvency or default in payment by the customer.
(5) Payments are due in full immediately after completed service or delivery, at the latest on the day of receipt of the invoice. This also applies to partial services or part-deliveries. The customer shall be considered in arrears 7days after receipt of the invoice at the latest.
(6) The customer who is also the end user shall pay interest charges of 5% - other customers 8% - over the basic interest rate during the default period. We reserve the right to claim any further ascertainable damages.
(7) The customer is only entitled to a cash discount if specifically agreed in writing, if all payments due to us – including progress payments – have been received by us in full within the stipulated period.
(8) Representatives, field sales agents and drivers are only entitled to receive payments if they present our written authorisation.
(9) Settlement of accounts by cheque or bill of exchange is only acceptable as conditional payment and requires our written agreement in advance. Any (extra) charges which may be incurred are for the account of the customer. If we have accepted bills of exchange which are not eligible for discount at our bank, we can return these at any time and request cash payment.
(10) If the customer is in default with a payment, or if a bill of exchange or cheque goes to protest, or if application has been made for conciliation or insolvency proceedings of the assets of the customer, if the customer aspires to an extrajudicial conciliation or if there are other circumstances which make the creditworthiness of the customer appear dubious to an objective third party, we are entitled to declare all unsettled accounts immediately due for payment, regardless of their due date or of any possible payment delay facility previously agreed upon, and also to demand pre-payment or provision of security for ordered but as yet undelivered goods or services. Additionally we are entitled to withdraw in part or in full from all contracts concluded with the customer.
(11) If we have withdrawn in part or in full from contracts concluded with the customer, we are entitled to claim from the customer compensation for damages due to lost profits, depreciation and reduction in value as well as reimbursement for use and enjoyment. The customer must at his own cost and risk reach an agreement with us regarding preparation for removal and return of the goods in proper (original) packaging by a carrier whom we have either chosen or approved.
(12) § 9 of these terms and conditions of trade applies accordingly.
(13) The customer shall pay an additional handling charge of 5.00 Euro for every reminder which we send.
(14) The customer is only entitled to set-off when his counterclaims have been verified as legally effective or we have recognised them. The customer can only assert a right of retention if his counterclaim is based on the same contractual relationship.
§ 4 Delivery/Packaging/Transfer of risk/Acceptance (1) For commercial customers despatch shall be for customer account and risk.
(2) Delivery periods agreed are ex factory and – like delivery dates – are only binding, if specifically agreed in writing as binding, irrespective of our right to deliver before the expiry of this delivery deadline.
(3) Agreed times for delivery begin on the date of confirmation, but not before we have received all documents necessary for the implementation of the job and the customer has carried out his responsibilities and made any applicable down payment. Subsequent requests by the customer for alterations or additions will result in the delivery time being extended reasonably and proportionally.
(4) The delivery deadline shall be deemed observed when the customer has been notified of the readiness for despatch, if despatch afterwards becomes impossible through no fault of ours.
(5) Delivery within two weeks after a non-binding delivery deadline is deemed to be observed. If the delivery deadline is considerably exceeded, the customer is entitled to give us a reasonable final deadline in writing. This must be for a period of at least two weeks. After expiry of this final deadline, the customer is entitled to withdraw from the contract, in which case a notice of cancellation must be given in writing. The right of withdrawal shall expire if notice of cancellation is not received by us within two weeks after expiry of the final deadline, or if we make delivery to the customer before receipt of the notice of cancellation.
(6) Further claims by the customer – in particular claims for compensation due to delayed delivery or failure to perform – shall be limited to cases of gross negligence or intent on our part. The provisions set out in § 7 remain otherwise unaffected..
(7) The goods can only be handed over to the customer when the agreed down-payments or other payments due before handover have been received.
(8) If delivery or handover of the goods is delayed through circumstances beyond our control – such as traffic disruptions or factory stoppages, strikes, lock-outs, lack of raw materials etc. – the delivery deadline shall be extended appropriately. In such cases we are entitled to partly or completely withdraw from the contract.
(9) We are entitled to make partial deliveries.
(10) If the customer delays acceptance of the goods, we are entitled to leave them at the building site, or to store them either at our factory or with third parties – at customer cost and risk.
(11) With the exception of pallets, the packaging will be separately invoiced, not accepted back and will become the property of the customer, unless any withdrawal or return situations covered by these terms and conditions of trade occur. Pallets remain our property. They should be immediately returned upon delivery. Pallets not returned will be charged.
(12) The risk of accidental loss and accidental deterioration of the goods – unless otherwise provided for in these terms and conditions of trade – shall transfer to commercial customers upon handover, and with sales to destinations specified by the purchaser, upon delivery of the goods to the forwarding agent, the carrier or the person or company responsible for the transportation. It shall make no difference to the handover if the customer delays acceptance.
(13) If delivery by us has been agreed, this shall be to the ground floor provided proper access is available. Unloading is the responsibility and for the cost of the customer. If the customer is responsible for unusual, complicated or otherwise challenging delivery, we are entitled to deliver and unload the goods at the nearest suitable place, at customer risk, without any further obligation on our part. § 4 (9) and (10) and § 9 of these terms and conditions of trade shall apply accordingly.
(14) At the express written request of the commercial customer, the goods will be insured at his cost against storage, breakage, transport and fire damage. Full freight costs to be submitted by the customer at our request.
(15) If the customer delays taking delivery of the ordered goods for longer than one month, then for each further expired month he shall pay two percent of the goods price without deduction as storage costs. If we have evidence of higher storage costs we are entitled to claim these. Our claim is limited to the amount of the purchase price. We can also use a forwarding agency for storage. The customer is entitled to produce evidence of lower damages if applicable. If the customer refuses to take delivery of the goods after expiry of a reasonable final deadline or if he declares beforehand that he does not wish to take delivery, then we are entitled to withdraw from the contract and demand compensation. § 9 of the terms and conditions of trade shall apply accordingly.
(16) If goods are sold with on-call delivery, the customer is obliged to request the delivery within a reasonable period of time. At our request he is obliged, within ten days of the request, to set a binding deadline for delivery within the next 12 weeks. If the customer does not adhere to the above deadlines we are entitled to withdraw in part or completely from the contract with a final deadline of one week, or to place all or part of the goods in a warehouse for the cost and risk of the customer. After expiry of the one-week deadline we can carry out a specification from the customer. Payment is due at the latest when the goods have been stored and the customer has been advised of this fact in writing. We are further authorised to dispose of the goods intended for the customer on the open market, for his cost and risk.
(17) At the latest our account shall serve as notification that the order is ready and request to the customer to take delivery. Any work is deemed as having been accepted if the customer does not expressly refuse delivery in writing within 12 working days. We are entitled to demand that completed parts of the order will be accepted.
(18) The possible right of cancellation by the customer as per § 649 BGB [Bürgerliches Gesetzbuch – German Civil Code] § 8 I 1 VOB/B [Verdingungsordnung für Bauleistungen – standard building contract terms] is limited to important reasons.
§ 5 Examination/Notification of defects/Storage (1) Upon delivery the customer must carefully examine goods for defects without delay – even part deliveries. The goods must in all cases be properly stored after acceptance. Spot checks are insufficient, even with larger deliveries. Obvious defects should be confirmed in writing by the person who made the delivery.
(2) The commercial customer must inform us in writing of any defects which become obvious after delivery. If not ascertained and reported at the time of delivery, defects of glass products should be notified within a period of three days from receipt of the goods; for other materials a 7-day time limit for claims shall apply. If the customer does not comply with the above deadlines he shall have no further entitlement to subsequent performance/guarantee claims. The punctual despatch of the notification of defects is sufficient for compliance with the agreed time limit.
(3) If the goods were not examined and accepted or found defective upon delivery, the commercial customer shall report any non-discernible defects in writing immediately after these are discovered, at the latest a week after discovery. The obligation to examine and notify defects described in the HGB [Handelsgesetzbuch – German Commercial Code] shall also apply.
(4) In the event of defects being improperly notified or not notified within the set deadlines, the goods shall be considered as approved.
(5) We do not accept responsibility for and/or do not guarantee goods, which the customer himself or through third parties alters, processes or combines with other articles in spite of obvious defects, or goods which the customer does not store properly.
(6) The commercial company shall bear the onus of proof for all conditions of entitlement to any guarantee or subsequent performance, particularly for the defect itself, the time it was ascertained and for notice of the defect being given in good time. This also applies to the onus of proof that we were responsible for the defects or damage which occurred.
§ 6 Guarantee/Subsequent performance (1) Our guarantee to commercial customers is that we will choose to either subsequently improve or replace defective goods.
(2) The customer guarantees that the manufacture and delifery of items which are produced according to his specifications, do not infringe industrial property rights of third parties. The customer releases us from any liability towards third parties in this connection.
(3) If our improvement costs increase due to the goods having to be taken to a different place than the customer’s residence or business establishment, then the customer shall be responsible for the amount of the increase in cost.
(4) If the customer receives defective assembly instructions we are obliged to provide correct assembly instructions only if the fault impairs proper assembly.
(5) The customer must allow us the necessary time and opportunity to make the subsequent improvements and/or replacements, whereby a minimum period of 6 weeks is agreed. We shall determine the type and place of subsequent improvement. If the customer does not co-operate or if he does not make the goods available to us, then we shall be free of any liability and guarantee.
(6) If the customer elects to withdraw from the contract due to a material defect or a defect of title after subsequent improvement failed, he is not entitled to any further compensation due to the defect. If the customer elects compensation after failed subsequent improvement, the goods will remain with the customer if this is acceptable to him. Compensation for damage is limited to the difference between payment of the goods delivered (excluding packaging, transport and other additional costs) and the value of the defective article. This does not apply if we have wilfully and knowingly caused the breach of contract.
(7) The guarantee does not extend to damage which is the result of normal wear and tear, use of force, improper handling and/or storage, etc. by the customer. The same applies if a defect can be ascribed to guidelines or directives made by the customer or his employees, or to other materials, components or constituent parts supplied or added by the customer.
(8) The guarantee period towards commercial customers shall be for one year from date of delivery or handover of the goods.
§ 7 Limitations of liability/Limitation period of claims for compension (1) In cases of ordinary negligent breach of duty, our liability is limited to foreseeable, typical, direct damage according to the type of goods. This also applies to ordinary negligent breach of duties by our legal agents or employees. We are not liable to commercial customers for ordinary negligent breach of insubstantial contractual duty.
(2) The above limitations of liability shall not apply to claims by the customer against product liability. Further, the limitations of liability shall not apply to damages for injury to life, bodily injury or injury to health of the customer arising from a breach of duty by ourselves.
(3) Claims for compensation by the customer due to a defect expire one year after delivery of the goods. This does not apply if we can be charged with gross negligence or in the event of injury to life, bodily injury or injury to health arising from a breach of duty by ourselves.
§ 8 Reservations of title/Assignments of future claims (1) The goods handed over or delivered shall remain our property until payment has been received in full. With companies this also applies until payment of all existing or future claims against the customer out of the business relationship have been paid in full, especially when the customer has paid for certain goods in full.
(2) The customer shall treat the conditional goods with care, store them separately and properly, mark them as our property and – if intended for a third party – expressly point out the reservation of title to the recipient. Each change of location and intervention by a third party, particularly seizures or damage, are to be immediately reported to us in writing, seizures to also enclose the bailiff’s record. The customer bears the risk of deterioration and loss of the conditional goods and shall take out sufficient insurance against damages – particularly against fire, flood, theft, etc.
(3) Our reservation of title also extends to goods which the customer passes on or has passed on to third parties, but which because of the reservation of title rights of the customer towards the third party has not yet become the property of the third party.
(4) If conditional goods are processed into a new movable article, then the processing takes place for us, without this giving rise to any obligations on our part; the new article will become our property. When processing takes place using other goods which do not belong to us then we are entitled to joint ownership of the new article according to the proportion of the value of the conditional goods to the value of the other articles at the time of the processing. If conditional goods are amalgamated, combined or blended with other articles as per §§ 947, 948 BGB, then we shall become joint owners according to the legal provisions. If the customer acquires sole ownership by amalgamating, combining or blending, he now transfers to us joint ownership according to the proportion of the value of the conditional goods to the value of the other articles at the time of amalgamating, combining or blending. In such cases the customer shall keep in safe custody, free of charge, the article which is our property or joint property, and which is considered as conditional goods as per these terms and conditions of trade.
(5) If the customer resells the conditional goods either on their own or together with other articles which are not our property, then the customer hereby assigns to us claims to which it is entitled from this resale to the extent of the value of the conditional goods with all subsidiary rights and with priority over others. We accept this assignment.
(6) The value of the conditional goods is the amount of our invoice. If the resold conditional goods are in our joint ownership, then the assignment of the claim shall be the value of the portion of joint ownership to which we are entitled. The assignments remain up until repayment of all claims which exist or will arise out of the business relationship against the customer – irrespective of legal grounds.
(7) If conditional goods are installed by the customer as a fundamental component on his own property, then the customer hereby assigns to us claims arising out of the resale of this property or property rights to the extent of the value of the conditional goods with all subsidiary rights and with priority over others; this assignment also remains until repayment of all claims which exist or will arise out of the business relationship with the customer – irrespective of legal grounds. We also accept these assignments.
(8) If conditional goods are installed by the customer as a fundamental component on the property of a third party, then the customer hereby assigns to us the assignable claims for payment against the third party or person concerned, to the extent of the value of the conditional goods, with all subsidiary rights including granting a collateral mortgage, and with priority over all others. We also accept these assignments.
(9) The customer is only entitled and authorised to resell, to utilise and to instal the conditional goods in the course of regular business activity and only on the condition that the above claims actually transfer to the customer and that the customer reserves the right of ownership in proportion to the third party until payment of the amount due to us by the third party. In particular the customer is not entitled to pledge these conditional goods or transfer ownership of them as security, without our express written agreement. If the customer intends to resell conditional goods (also processed, amalgamated, combined or blended goods) to a third party who insists on agreement of a contractual covenant not to assign the claim of the customer on the third party, then the customer requires our express written agreement before the resale.
(10) We authorise the customer to collect the above claims assigned to us on our behalf, unless we cancel this authorisation. We will refrain from exercising our authority to collect as long as the customer meets his payment obligations – towards third parties too – without delay and there are no other circumstances which make the creditworthiness of the customer appear dubious to an objective third party. Upon our request the customer shall name to us the debtor of the assigned claims and notify them immediately about the claim; we are also entitled and authorised to notify the debtors about the claim ourselves. Upon our request the customer must immediately surrender the documents necessary for us to enforce our rights with the customer’s debtors.
(11) The rights of the customer to resell, use or instal the conditional goods and the authorisation to collect assigned claims shall expire when defaults in payment, application or opening of insolvency proceedings or judicial or extrajudicial conciliation proceedings occur; the same shall apply to cheque or bill of exchange protests.
(12) If the value of the collateral security granted to us by the customer exceeds our claims on the customer by more than 20 %, then we are obliged to either transfer back or release a corresponding part of the security interest. When all our claims from the business relationship have been repaid, ownership of the conditional goods and the assigned claims shall transfer to the customer.
(13) If the customer is obliged to surrender the conditional goods upon our request, we are entitled to choose to sell the goods either by auction or on the open market and to set off the proceeds against the claims existing against the customer, or to withdraw from the contract wholly or in part. Further rights – such as compensation for damages caused by default or ongoing damages – remain unaffected. The customer is obliged to return the goods freight-free and expense-free in accordance with § 3 (11) sent. 2 of these terms and conditions of trade.
§ 9 Compensation as a lump sum (1) If we are entitled to claim for compensation from the customer for total or part non-compliance with the contract, this shall amount to at least 25% of the payment applicable to the goods not delivered. The customer reserves the right to prove lesser damages or reduction in value.
(2) We are entitled to assert a higher claim for compensation if we can prove that greater damages have accrued to us.
§ 10 Final provisions (1) The customer is aware and agrees that we may store and utilise personal data in connection with the business relationship. A separate communication about this will not be issued.
(2) The law of the Federal Republic of Germany shall apply. The provisions of the United National Conventions of Contracts for the International Sales of Goods shall not apply even if the customer has his head office and/or his delivery address abroad.
(3) The place of performance for delivery and payment is our company head office in Gütersloh [Germany].
(4) If the customer is a businessman, a legal entity under public law or a separate fund under public law, the exclusive place of jurisdiction for all disputes arising from the business relationship is our head office at Gütersloh – also for legal action based on dishonoured bills of exchange and cheques. We are entitled to take legal action at either the competent Amtsgericht [magistrates court] or Landgericht [regional court] regardless of the amount in dispute. The same applies if the customer does not have a place of jurisdiction in Germany or if his residence or usual place of abode at the time of commencement of the action is unknown.
(5) Should individual provisions of the contract with the customer or these general terms and conditions of trade be or become wholly or partly invalid or impracticable, the validity of all other provisions will be unaffected. The invalid or impracticable provision shall be replaced by a valid and practicable provision, the commercial outcome of which is as close as possible to the invalid or impracticable provision. The same applies in the event of an omission. If the invalidity or the impracticability is dependent upon a provision regarding performance or time, then the measure permitted by law shall apply instead.
October 2003 
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