General conditions of delivery and payment
I. Terms and Conditions of Supply and Payment
Validity of our Terms and Conditions of Business
1. The following General Terms and Conditions shall apply to all current and future business relations with contractors as customers and are solely decisive for the content of concluded sales contracts as well as other contracts, including mixed-purpose contracts.
2. Contractors, in the sense of the terms and conditions, are natural or legal persons or legally constituted private limited companies, with which a business relationship is entered into, exercising a commercial or self-employed professional activity.
3. Regulations differing from these Terms and Conditions, in particular also differing, conflicting or supplementary General Terms and Conditions of customers, even with the knowledge thereof, shall not constitute part of contracts, unless the validity thereof is expressly agreed to in writing. Amendments and supplements to a contract, as well as supplementary agreements shall only be binding if they are confirmed in writing.
II. Offers, subsidiary agreements, prices
1. Our offers are subject to change without notice, except where these are specifically limited in time and are subject to sale. Orders shall not be binding on us until such time as we issue a written confirmation or effect delivery of the goods.
2. Subsidiary agreements and amendments shall only be valid if confirmed in writing by ourselves. An express prerequisite for any undertaking concerning specific features of our goods is the marking of these features by ourselves. Specimens and samples shall be considered only as approximate visual demonstration material.
3. The offered prices are plus the statutory value added tax valid on the day of the delivery of the goods. A discount shall not be granted. The despatch shall take place at our discretion in customary packaging. Required special packaging (e.g. seaworthy packaging) and other expenses, taxes and duties shall be borne by the Buyer. Agreed supplementary services shall be charged additionally.
If the customer is a merchant and the contract part of the operation of his commercial enterprise, or a legal person under public law, our price prevailing on the date of delivery shall apply in all cases. In other cases price alterations shall only be permissible, if the period between conclusion of the contract and the agreed delivery date is more than four months; in such cases the price prevailing on the date of delivery of the contract shall apply. Unless otherwise agreed, our prices shall be understood as ex-factory or ex warehouse.
The sales-related minimum rates, agreed upon, are binding. Provided that the order is below the freight limit, we will charge freight costs in the amount of €4.50.
4. Discounts on products are only granted when distributed in the own premises. They shall not apply when selling-on to resellers.
III. Delivery and assumption of risk
1. Delivery periods are subject to change without notice, except in cases where we have given express written confirmation that the delivery times have been agreed as binding. We shall make every effort to take account of our customer's call-off dates after taking into consideration our other commitments. If delivery periods have been agreed in writing, these shall commence upon conclusion of the contract, however not before submission of documents, authorisations and releases to be provided by the customer. Partial performances are permitted, unless the Buyer proves that the partial performance is of no interest to him.
2. Should we be hindered in the compliance with the performance period due to unforeseen circumstances outside of our direct sphere of influence, which with the diligence of a prudent businessman cannot be averted (force majeure), the performance period shall thus be extended as appropriate by the time period and the extent of such obstacles, in as far as the performance shall not finally be made impossible. Force majeure is considered in particular to be operational breakdowns caused by fire, water and similar circumstances, failure of production equipment and machinery, strike and lock-out, lack of labour, material, energy, transport etc., regardless of whether these circumstances occur at our business establishment or at the establishment of one of our previous contractors or subcontractors. The Buyer shall be informed of such circumstances by us. Partial deliveries already made shall be deemed to be an independent business.
3. Should effective delivery dates have been agreed, we shall not be in default of performance until a written reminder has been received. Should we be in default of performance or should a reason for impossibility to perform exist which is attributable to us, the customer shall be entitled to rescind the contract, provided that he has granted us an appropriate period of grace in writing, accompanied by notification that upon expiry of the period of grace, he shall refuse acceptance of the goods.
Rescission must be made in writing. The entitlement of the customer to claim compensation for damages shall be excluded, unless the claims concern intentional or grossly negligent conduct on the part of ourselves, a legal representative or a vicarious agent.
4. The customer is obliged to accept the goods ordered. Should he default on fulfilment of this obligation, we shall be entitled to grant an appropriate period of grace in writing, accompanied by notification that upon expiry of the period of grace, fulfilment of the contract shall be refused. In such cases we shall be entitled to choose, at our discretion, between rescission of the contract or asserting claims for damages as a result of non-performance. Excess delivery or short delivery up to 10% per single product of the ordered goods is no subject to claim. The definite amount of the delivered goods will be invoiced. The quantities concerning excess delivery or short delivery rise to 15% for Buyers ordering private label.
5. The risk shall pass to the Buyer upon loading ex-factory or ex warehouse. If the Buyer demands a delivery at a subsequent date, the risk shall pass to the Buyer upon invoicing. The goods shall then be in transit at the Buyer’s risk, even in cases where freight is prepaid by ourselves and irrespective of whether transport is effected with our own vehicles or by a third party company. The choice of the transport routes shall be made freely after due assessment of the circumstances. Transport insurance shall be taken out only if expressly requested by the Buyer and shall be for his account. For the purpose of determining the weight of the delivery, the weight determined on departure shall be authoritative.
IV. Warranty, liability
1. Customary commercial tolerances regarding measurements, quantities and other quality requirements shall not be considered as defects; if the goods delivered are within these tolerances we shall be under no obligation in respect of liability.
2. a) Buyers must advise us of obvious defects within a period of one week from receipt of the goods in writing, otherwise, the assertion of the warranty claim is excluded. Timely despatch is sufficient to comply with the deadline. The Buyer shall bear the full burden of proof for all prerequisites of claims, in particular for the defect itself, for the time of the determination of the defect and for the prompt lodging of a complaint in respect of the defect.
b) If the purchase is a commercial transaction for both parties, the Buyer shall inspect the goods immediately after delivery to check their freedom from defects and for their completeness, and to thereby notify us immediately of any defects found. Should the Buyer fail to timely inspect the goods or to give notification of the defects, the delivered goods shall be deemed approved, unless the defect was not able to be noticed during the inspection. We shall also be immediately notified of defects which are discovered later on; otherwise the goods shall also be deemed approved even with respect to this defect. The notice of defect shall be submitted in writing respectively and the claimed defect exactly described. Moreover, Section 377 of the German Commercial Code shall apply accordingly.
3. Should our warranty obligation apply, we shall as a matter of principle, fulfil this obligation by means of a replacement delivery of faultless goods against return of the defective goods. Should only part of the delivered goods be defective, the obligation to provide a replacement delivery shall be limited to this part. Should the replacement delivery fail, the Buyer shall be entitled to demand a reduction of the purchasing price or rescission of the contract with respect to the defective part of the delivery. Claims for damages as a result of defects of our goods shall be excluded. This shall not apply in the case of expressly assured features if the customer is a non-merchant.
4. The Buyer shall contact us first to receive authority to return goods with a correctly completed returns form. We reserve the right of returning goods to the Buyer’s expense, in case he sent them back without having the authority from us.
5. a) In the case of slight negligence, our liability is limited to the foreseeable, average damage, typical of the Contract, according to the type of subject of the fulfilment. This also applies in the case of slight negligence on the part of our legal representatives or vicarious agents.
b) However, we shall not be liable for slight negligence of insignificant contractual obligations.
c) The foregoing disclaimers and limitations of liability shall not apply for cases of no-fault liability, in particular according to the product liability law and not for attributable personal injury, damage to health or loss of life and not for damages which are based on intent, gross negligence or the lack of warranted properties.
6. The warranty shall lapse if the goods are stored improperly or modified by the Buyer.
V. Payment and security interests
1. The payment terms as indicated on the invoice are binding. The date of receipt of payment is decisively.
2. We shall be entitled to charge Buyers who are merchants or legal persons under public law, interest on overdue payments at a level 8% above the prevailing discount rate of the German Federal Bank (Deutsche Bundesbank) as from the date on which payment is due. However in the case of Buyers who are not merchants, this interest may not be charged until default applies.
3. Should the Buyer default on payment we shall be entitled to make due, without any form of cash discount, all deferred payments or those not yet due and to demand payment in cash or the provision of collateral. This shall also apply in the case of any possible form of visible deterioration in the net worth value, in particular the filing of a petition in bankruptcy, the initiation of judicial or extra-judicial composition proceedings, or the carrying out of court ordered enforcement measures.
4. Our statements of account shall be considered accepted if no written objection is made within one month of receipt.
5. Offsetting against counter claims shall be admissible only if these are legally determined or recognised by ourselves and are due for payment. The Buyer shall refrain from asserting claims for the right of retention from previous or other business transactions within the current business relationship.
6. We shall retain title to goods delivered as conditional commodities until payment of the purchasing price and repayment of all pending claims arising from the business relationship has been received. In the case of default of payment, we shall be entitled to take back the conditional commodities and the Buyer shall be obliged to release the same. The Buyer is entitled to sell the delivered goods to a third party in the context of a normal business transaction, provided he fulfils his obligations to us.
If the goods that are our property are sold to a third party by the Buyer, the Buyer's claim against the third party shall come into effect to the invoice value of our claims, instead
of the goods, without any express assignment to us being necessary.
The transfer of individual accounts receivables, into a current account shall not nullify the retention of title; the same shall apply to the striking of a balance and the recognition thereof.
1. The Law of the Federal Republic of Germany shall apply without the law rules of private international law and under exclusion of the UN Sales Law.
2. Should a provision of these General Terms and Conditions be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected thereby. The wholly or partly ineffective provision shall be replaced by a regulation, the economic success of which comes as close as possible to the invalid regulation.
3. Modifications to these provisions are only possible in writing. The written agreement can also only be changed in writing.
4. If certain goods are delivered under special conditions of delivery, the above Terms and Conditions shall in addition apply to the extent that they do not contradict the special conditions of delivery.
5. The place of performance for all deliveries, also for free deliveries, is our distribution centre in 06796 Brehna, Germany.
6. If the customer is a merchant, a legal person under public law or a special fund under public law, the agreed place of jurisdiction for all disputes arising from this Contract is Freiburg im Breisgau / Germany, with the provision that we are also entitled to file suit at the place of domicile or branch of the customer. The same applies if the customer does not have a general place of jurisdiction in Germany or if his place of residence or normal place of residence at the time of the legal action is not known.
This also applies to disputes concerning documents, bills of exchange or cheques, irrespective of the place of payment arising from the bill of exchange or cheque.
ANTON HÜBNER GmbH & Co. KG
P.O. Box 49
79238 Ehrenkirchen, Germany
Phone 0049 76 33/909-0
Telefax 0049 76 33/909-165
Edition: December 2014